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1854 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

.SCHOOL  OF   LAW 


GIFT  OF 


9  *\.  tUavws 


PRACTICE  AND  PLEADING 


APPENDIX  OF  FORMS 


TEXT   OF    CODE   AND   EULES 


HENRY  WHITTAKER. 


SECOND  AND  REVISED  EDITION,  IN  TWO  VOLUMES. 


Vol.  X. 


NEW    YORK: 
PRINTED    FOR    THE    AUTHOR, 

AND  SOLD  BY  THE  PRINCIPAL  LAW  BOOKSELLERS   THROUGHOUT    THE   STATE, 

1854. 


Entered  according  to  Act  of  Congress,  in  the  year  1852,  by 
HENRY    WHITTAKEK, 

AUTHOR   AND   PROPRIETOR, 

in  the  Clerk's  Office  of  the  District  Court  for  the  Southern  District  of  New  York. 

Entered  according  to  act  of  Congress,  in  the  year  1854,  by 
HENRY    WHITTAKEK, 

ADTUOR   AND   PROPRIETOR, 

in  the  Clerk's  Office  of  the  District  Court  for  the  Southern  District  of  New  York. 


T 


B     0.    .IK.NKINS, 

•EINTEB   AMi  BTESEOTYPER, 
:  i  Street 


CONTENTS  OF  VOL.  I. 


Index  to  Cases  cited,      .... 

Introduction. 

Supplementary  Introduction,  noticing  recent  Decisions. 


BOOK  I. 

Of  the  Courts  of  Justice  within  the  State  of  New  York. 

Chapter  I.    Of  Judicial  and  other  Officers. 

§  1.    Judicial  office,              .               .               .               •  1 

2.  Judicial  powers,  delegation  of,                           .               •  2 

3.  Clerk  of  court,  .  .  .  ...        2 

4.  Affidavits,  taking  of,             ....  3 

5.  Sheriffs,  &c,                  .                .                •                •  .4 

6.  Other  ministerial  officers,     ....  6 

7.  Attorneys  and  counsel,                 .                .                .  .7 

Chapter  II.    Of  different  Courts  of  Justice  within  the   State   of 
New  York. 

§  8.    Courts,  list  of,        .               .               .               .               .  10 

9.    Federal  courts,  jurisdiction  of,    .               .               .  .11 

Chapter  III.     Of  the  Courts  of  Appeal. 

§  10.    Jurisdiction  and  powers  of,                  ...  14 
Chapter  IT.    Of  the  Supreme  Court. 

§  11.    Supreme  Court,  power  of,             .             .               .  .19 

12.  General  and  special  terms,  ....  20 

13.  Chamber  business,,  powers  of  county  judges,              .  .      21 

14.  Powers  of  judges  out  of  court,             ...  23 

15.  Courts,  arrangement  as  to,          .                .                .  .       24 

16.  Appeals,  &c,         .....  25 

17.  Rules  of,        .                .               .               .               .  .25 

Chapter  V.    Of  the  County  Courts. 

§  IS.    Jurisdiction  and  power  of,    .               .               .  26 


756564 


iy  CONTENTS. 

Chapter  VI.    Of  the  Superior  Court  and  Court  of  Common  Pleas  of 
the  City  of  New  York. 

§  19.    Jurisdiction  and  powers  of,  generally  considered,     .  .      32 

Chapter  VIII.    Of  the  Mayors'  and  Recorders'  Courts  of  Cities. 

§  20.    Powers  and  jurisdiction  of,  .  .  .40 

Chapter  VIII.    Of  Justices'  Courts  ix  General,  including  the  Marine 
and  Justices'  Courts  in  the  City  of  New  York. 
§  21.    Powers  and  jurisdiction  of,  ...  42 

22.  Discontinuance  before  justice  where  title  in  question,  .      44 

23.  Proceedings  in  courts  in  question.       ...  47 


BOOK  II. 

Of  Actions,  generally  considered. 

Chapter  I.    Of  Actions  in  General.  k 

§  24.     General  definitions,               ....  54 

25.  Alternative  remedies  and  special  proceedings,          .  .      55 

26.  General  observations,           .               .               .               .  56 

Chapter  II.    Of  the  Parties  to  an  Action. 

§  27.    General  principles  as  to,             .               •               .  •      58 

28.  General  rules  as  to  parties  plaintiffs,                 .               .  59 

29.  Parties  plaintiffs,  rules  under  Code,            .               .  .61 

30.  Parties  defendants,  general  rules,       .               .               .  71 

31.  Parties  defendants,  rules  under  Code,        .               .  .77 

32.  Interpleader,          .....  82 

Chapter  III.    Of  the  Limitation  of  Actions. 

§  33.     Limitations,  generally  considered,              .                .  .84 

34.  Real  estate,  limitations  as  to,              ...  86 

35.  Personal  actions,  limitations  as  to,              .                .  .       92 

36.  Suspension  of  limitations,     ....  99 

37.  Action,  when  deemed  commenced,             .               .  .     107 


BOOK  III. 

Commencement  of  an  Action,  and  the  Preliminaries  thereto, 
when  /"'-•'  ssa/ry. 

CeUPTBB  I.     Or  tmi;  I';  i  i  <\tr.  \i  u.    in  THE  COMMENCEMENT  OS1  AN  ACTION, 
i\   CERTAIN  0 

38.    V:wv,u  i  preliminai  ....  109 


CONTENTS. 


CONTROVERSY 


Chapter  II.    Of   Proceedings    for    Settlement    of    a 
without  Action  brought. 
§  39.     Submission  of  controversy, 
40.    Confession  of  judgment,  . 

Chapter  III.    Of  Summons,  and  its  Service. 

Preliminary  Remarks,  .... 

§  41.    Summons,  nature  and  form  of, 

42.  Service  of  complaint,  with  summons, 

43.  Notice  of  no  personal  claim,       . 

44.  Service  of  summons,  .... 

45.  Substituted  service  against  resident  defendants  in  certain 

cases — Service  by  publication, 

46.  Service  on  several  defendants,  joint  debtors,  &c, 

47.  Proof  of  service,  . 

48.  Appearance  of  defendant,     .... 

49.  Closing  remarks  on  above  head, 

Chapter  IV.    Of  the  Appointment  of  Guardian,  and  his  Duties. 

§  50.    General  remarks,  .... 

51.  General  guardian,         . 

52.  Guardian  ad  litem,  .... 


112 
113 


117 
118 
125 
126 
126 

131 
138 
139 
140 
141 


142 
142 
146 


BOOK  IV. 


Of  the  formal  Machinery  of  an  Action. 


§  53. 

Preliminary  remarks,    .... 

151 

54. 

Notices,  and  service  of  papers, 

152 

55. 

Service  by  mail,          .... 

155 

56. 

Computation  of  time,           .... 

160 

57. 

Papers  in  cause — marking  folios, 

162 

58. 

Consents  or  admissions,        .... 

162 

59. 

Undertakings,               .... 

lg3 

60. 

Affidavits,              ..... 

163 

61. 

Motions  and  orders — general  definitions,    . 

167 

62. 

Motions,  general  classificaion  of,         . 

168 

63. 

Where  and  before  whom  motions  may  be  made, 

168 

64. 

Ex  parte  motions,                 .... 

174 

65. 

Order  to  show  cause,    . 

179 

66. 

Notice  of  motion,                  .... 

180 

67. 

Petitions,       ..... 

184 

68. 

Opposed  motions,  where  cognizable, 

186 

69. 

Opposed  motions — course  on  hearing,  and  incidents  of  papers 

used  on,      . 

190 

70. 

Orders — general  remarks,    .... 

198 

yj  CONTENTS. 


BOOK  V. 

Of  Provisional  Remedies. 
§  71.    General  remarks,         .  .  .  .  .205 

Chapter  I.  Op  Arrest  and  Bail. 

§  72.  Preliminary  remarks— old  law  how  far  repealed,              .            207 

73.  Writ  of  ne  exeat,  .                .                .                .                .208 

74.  When  defendant  arrestable— statutory  provisions,  .            210 

75.  Application  for  arrest,  when  and  how  made,  .                .     217 

76.  Mode  and  incidents  of  arrest,  .                .                .            222 

77.  Course  of  defendant  when  arrested,  .               .               .    223 

78.  Bail  by  defendant,  .                .                .                .228 

79.  Exception  and  justification.         ....     231 

80.  Surrender  by  bail,  .                .                .                .233 

81.  Remedies  against  bail.  ....     234 

82.  Exoneration  of  bail,  .                .                .                .            235 

83.  Deposit  in  lieu  of  bail,  .                .                .                .236 

84.  Concluding  remarks,  ....            237 1 

Chapter  II.    Op  Claim  and  Delivery  op  Personal  Property. 

§  85.    General  characteristics  of  replevin  under  Code,       .  .237 

86.  Provisional  remedy,  how  obtained,     .                .  .            241 

87.  Defendant's  course  of  action,  and  ulterior  proceedings,  .    244 

Chaptee  III.    Injunction. 

88.  Preliminary  remarks :  by  whom  granted,  .  .  248 

89.  When  obtainable— general  classification,  .  .  249 

90.  Preliminary  injunctions,       ....  250 

91.  Subsidiary  injunction,  ....  259 

92.  Mode  of  application  for— affidavits,    .  .  .  260 

93.  Service  of  injunction,  ....  266 

94.  Defendant'    course,  in  order  to  oppose  or  vacate.             .  267 
!)."..  Violation  Of  injunction,                ....  272 

BB   IV.     An    i'ii- 

§  96.    Nature  of  remedy,  ....  ^7) 

97,    i  i  ind  how  obtainable,  .  .  .    275 

affidavit,  .  .  .  .282 

99.    Security  on  application,  ....    284 

100.  Warrant  of  attachment,       ....  285 

101.  proceedings  on  warrant,  .  .  .  286 
L02.  i  i  of  attachment,  on  giving  Beourity,  .  .  289 
in:;.    Efl                      ■  •  if  in  favor  of  defendant,            .              .    29:5 

Chaptxb  V.    An  i  b,  .'.ni>  othbb  Provisional  Remedies. 

L04.  ....  297 

in;..    Receivers,      ......    298 

106.    Other  remedies,    .....  803 


CONTENTS.  vii 

BOOK  VI. 

Of  Pleading,  generally  considered. 

Chapter  I.    Of  the  essential  Requisites  of  Pleading. 

§  107.     Abolition  of  ancient  forms,          .  304 

108.  Distinctions  between  law  and  equity,  .                .            305 

109.  Averments  of  fact,  principles  as  to,            .  .                .     308 

110.  Observations  in  conclusion,                  .  .                .            325 
Chapter  II.    Of  the  formal  Requisites  of  Pleading. 

§  111.  Numbering  folios,  &c,  .               .               .                .327 

112.  Subscription  and  verification,  .  .                 .            328 

113.  Return  of  defective  pleading,  ....     331 

114.  Other  formalities,                  .  .  .                .335 

Chapter  III.    On  the  Correction  of  Pleadings  by  the  moving  Party. 

General  remarks,                  ....  336 . 

§  115.    Amendments  as  of  course,           ....  336 

116.  Service  of  amended  pleading,             .                .                .  343 

117.  Amendments  by  leave  of  the  court,            .               .               .  344 

Chapter  IV.    Of  the  Correction  of  Pleadings  ox  Motion  of  the  ad- 
verse Party. 

118.  Preliminary  remarks,            .                .                ,  .351 

119.  When  motion  proper  remedy,  or  the  reverse,  .               .351 

120.  Y\~hen  motion  to  be  made,  and  how,    .                 .  .            353 

121.  Irrelevancy  or  redundancy,         ....     354 

122.  Motion  for  uncertainty,        .                .                .  -                        363 


BOOK  VII. 

Of  the  Pleadings  in  an  Action,  and  the  Proceedings  in  connection, 
therewith,  dozen  to  the  Joinder  of  Issue. 

Chapter  I.  Of  the  Complaint,  and  the  Proceedings  collateral t 

§  123.  General  definition,       .  .  .  , 

124.  Formal  requisites, 

125.  Statement  of  cause  of  action,     . 

126.  Joinder  of  causes  of  action, 

127.  Right  of  plaintiff  to  sue, 

128.  Averments  of  fact,  generally  considered, 

129.  Averments  of  fact  in  special  cases, 

130.  Averments  of  fact  in  special  cases,  continued.   . 

131.  Averments  of  fact,  continued,     . 

132.  Averments  of  fact,  continued, 

133.  Averments  of  fact,  continued  :  Real  estate  cases, 

134.  Prayer  for  relief, 

135.  Service  and  other  formalities, 

136.  Collateral  proceedings. 


HEREWITH. 

.  365 

366 
.  368 

369 
.  376 

380 
.  386 

392 
.  403 

405 
.  409 

417 
.  420 

422 


vm 


CONTENTS. 


Chapter  II.    Of  the  Defendant's  Course  of  Action  ox  being  served  with 
Process. 


§  137.  Defects  in  summons,     .... 

138.  Notice  of  appearance — demand  of  copy  complaint, 

139.  Motion  to  dismiss,         .... 

140.  Defendant's  course  on  service  of  complaint,     . 

141.  Precautionary  proceedings  of  defendant,  on  his  own  behalf, 

142.  Defendant's  proceedings  with  reference  to  plaintifi", 

143.  Proceedings  preliminary  to  answer, 

144.  Time  to  plead,      .  .  • 

145.  Relief  where  default  suffered,     . 

Chapter  III.     Demurrer. 

§  146.  General  nature  and  office  of  demurrer, 

147.  Grounds  of  demurrer  under  Code, 

148.  Mode  of  statement  of  grounds  as  above, 

149.  Omission  to  demur,      .... 

150.  Demurrer  and  answer,  how  far  admissible  in  connection, 

151.  Frivolous  demurrer,    .... 

152.  Concluding  remarks,  .  .  .  • 

Chapter  IV.    Answer. 


§  153. 
154. 
155. 
156. 
157. 
158. 
1  V.). 
L60. 
161. 

§  lf>2. 
163. 
L64. 

1 65. 


Office  and  requisites  of  answer, 

Preliminary  considerations, 

Demurrer  by  answer, 

Traverse  of  plaintiff 's  case, 

Defensive  allegations,  in  bar  or  in  abatement,    . 

Defensive  allegations,  continued :  Averment  of  facts, 

Counter-claim  and  set-off,  &c., 

Demand  of  relief  by  answer,    . 

Defects  in  answer, 


425 
426 
429 
430 

434 
438 
445 
447 
452 


454 
458 
462 
464 
465 
466 
469 


469 
471 
474 
476 
485 
490 
502 
509 
509 


c  of  the  Plaintiff  on  receipt  of  the  Defendant's  Pleasing. 
Motion  to  satisfy  admitted  part  of  demand,  .  .    518 

Motion  on  ground  of  defects  in  answer,  .  .  519 

Amendment  of  complaint,  and  other  proceedings  before  final 

joinder  of  issue,    .....    523 
Discontinuance,     .....  525 


. '.                       i  Demurrer  to  Answer,  and  of  the  Defendant's  Pro- 

I     I    ADMISSIBLE. 

General  consideraf                    ....  526 

]i;;.                   !'>  answer,           ....  530 

168.  Reply,           ......  535 

169.  Del                                         of  reply,            .              .  538 
i7o.    Final  joinder  of  i  me,  effect  of  on  pleadings,  admission  of 

fact   aol  controverted,        ....  542 


Chapter  VII.  ,Ri 

.... 
172.    Supplemental  plead 


Ml 
553 


CONTENTS. 


IX 


BOOK   VIII. 

Of  Proceedings  between  Issue  and  Trial. 

Chapter  I.    Joinder  of  Issue,  general  Consequences  of,  including  Consolidation 
of  Causes. 

§  173.    Issue,  generally  considered,                .                .               .  556 

174.    Consolidation  of  causes,              ....  559 

Chapter  II.     Of  Proceedings  for  tue   purpose  of    dringing    the  Cause  to  a 
speedier.  Decision. 

§  175.    Motion  for  reference,           .               .               .               .  561 

176.     Other  proceedings,       .....  569 

Chapter  III.     Of  the  Change  of  Venue. 

§  177.    Motion  to  change  venue,     ....  575 

Chapter  IV.     Of  Proceedings  for  obtaining  an  Insight  into  the  Adversary's 
Case,  or  fortifying  that  of  the  moving  Party. 

§  178.    Enforcement  of  admission,          ....  584 

179.  Discovery,  &c. ;  anticipatory  notice,  .               .                .  585 

180.  Depositions  de  bene  esse,              ....  586 

181.  Commission  to  examine  witnesses,       .               .               .  588 

Chapter  V.     Of  the  formal  Preparations  for  Trial. 

§  182.    Noticing  and  setting  down  cause,               .                .                .  594 

183.  Affidavit  of  merits,  .  .  .  .602 

184.  Preparations  for  trial,                ....  605 

Chapter  VI.     Inspection  and  Discovery  of  Documents. 

§  185.     General  remarks — statutory  provisions,             .                .  610 

186.  Discovery  under  Rules,              ....  613 

187.  Discovery  and  inspection  under  the  Code,         .               .  617 

188.  Mode  and  course  of  application,                .               .               .  620 

Chapter  VII.     Examination  of  Parties. 

§  189.    Nature  of  remedy,               ....  624 

190.  Mode  of  examination,                    ....  626 

191.  Refusal  to  testify,                 ....  635 

Chapter  VIII.    Of  the  Rules  of  Evidence,  as  affected  by  the  Code. 

§  192.     General  outline  of  subject — statutory  provisions,    .               .  637 

193.  Evidence  of  parties,  as  such,                .                               .  638 

194.  Evidence  of  witnesses,                .               .                               .  646 


BOOK    IX. 

Of  Trial  and  consequent  Proceedings  before  Entry  of  Judgment. 
Chapter  I.     Of  Trial,  generally  considered. 

§  195.  General  incidents  of  trial,    .  .  .  658 

196.    Amendment,  or  disregard  of  formal  objections,       .  .     661 


x  CONTENTS. 

§  197.    Objections  on  trial,  ....  668 

198.     Other  incidents  of  trial.  generall)T  considered,         .  .671 

199. .  Course  of  trial,      .  .  .  .672 

Chapter  II.     Trial  of  ax  Issue  at  Law. 

§   200.     Course  on  trial.  .  .  .  .  .676 

20L    Course  on  decision,  ....  677 

Chapter  III.     Of  taking  Default  or  Inquest. 

§  202.     Default,         .  .  .  .  .  .680 

203.    Inquest,  .....  683 

201.     Opening  default,  or  inquest,        ....     686 

Chapter  IV.     Trial  by  Jury. 

§  205.     Constitution  of  jury — general  form  of  trial,     .  .  688 

206.  Incidental  points  as  to  trial,        ....  690 

207.  Verdict  and  its  incidents,     ....  693 

208.  Entry  and  consequences  of  verdict,  .  .  .  696 

Chapter  V.     Trial  by  the  Court. 

§  209.     Trial  by  court,  nature  and  incidents  of,  .  .  698 

Chapter  VI.     Trial,  or  Hearing  by  Referees. 

§  210.     General  characteristics,  ....  701 

211.  Provisions  of  Code,  powers  of  referees,  .  .  703 

212.  Course  of  hearing,        .....  707 

213.  Report,  &c,          .                .                .  712 
214    Interlocutory  or  consequential  reports— confirmation  of,  717 

Chapter  VII.     Motion  fob  new  Trial — Proceedings  between  Trial  and  Judg- 

MKNT. 

§  215.  Course  of  unsuccessful  party  in  relation  to  review,         .  719 

216.  Stay  of  proceedings,     .....  721 

217.  Motion  on  judges' minutes,  .  .  .  721 

218.  Motion  upon  a  case  as  to  facts,   ....  725 

219.  Mol ions  upon  exceptions,  as  to  law,   .  .  .  727 

220.  Preparation  and  settlement  of  case  or  exceptions,    .              .  730 
221  Searing  of  case  when  settled,            .              .              .  736 

222.  Separation  of  exceptions,  when  requisite,  .    740 

223.  Re-settlement  of  exceptions,  by  express  order,  .  712 

224.  Remit  of  decision  on  case  or  exceptions,  .  .  .    7-13 

225.  Law  as  to  granting  a  new  trial,          .              .  .  744 

226.  M'"                rounded  on  case  or  exceptions,  .  .    750 

<ji  lpt]  a  VI  ii.    i'  Qi   i    evatxing  Pabtt,  between  Trial  and 

.ll   i".\ll   s  I. 

<  .■  aera]  remarks,  .....  ~.vi 

§2-7.    tfinntes  of  judgment  amendments,  Ac.,          .              .  753 

228.    Special  verdict,  vei  it  to  opinion  of  oourt,  &c,        .  7.">i 

Other  proc<  .             .             .             .  i:<i 


INDEX  TO  CASES  CITED. 


A 

Sectiou 

Abbey  v.  Abbey  284 

Abbott  v.  Smith  133,  142,  238 

Acker  v.  Ledyard  70 

Adams  v.  Mills  75,  77 

"      v.  Rivera  .  22, 373 

Adsit  v.  Wilson  23,  209,  273 

Ahsbahs  v.  Coussin  142 

Albany  Northern  R.  R.  Co.  v.  Cramer 

69,  286, 310 
Alder  v.  Bloomingdale 
Aldrich  v.  Lapham 

"       v.  Thiel 
Alfred  v.  Watkins 
Alger  v.  Scoville 
Allen  v.  Ackley 

"     v.  Compton 

"     y.  Johnson 

"     v.  Patterson 

"     v.  Stone 


130 

133 

234,  235,  236 

112,161,  163 

109,  126,  207 

145,  249,  275 

115, 1S2,  203 

285 

128,  131 

23,  273 

"     v.      "  291 

"     v.  Way,  211,  212,  213,  21S,  225 

Am.  Home  Miss.  Society  v.  Wadharns     29 


Anon. 


Anderson  v.  Broad 
"  v.  Hough 
"         v.  Johnson 

Andrews  v.  Durant 
"        v.  Storms 

Angus  v.  Dunscomb 

Anibal  v.  Hunter 

Anon. 


157 

183 

190,  305 

232,  286, 288 

112,121,  154,163 

74 

148,  158,  167 

7 

19 

19,  97 

29 

41,238 

44,  238 

45 

51 

64,216 

74 

74,75 

86, 112 

109,  128,  129,  156,  158 

119 

128, 156 

159,  160 

146 

158 

158,  199 

159 

161 

175 

177 

194,231 

212,  300 


It: 


Appleby  v.  Elkins  130,  151, 

Arborgast  v.  Arborgast 
Armstrong  v.  Clark 

"  v.  McDonald 

Arnold  v.  Ditnon 

"      v.  Downing 
Arthur  v.  Brooks,        109,  148,  158, 
Astor  v.  L'Amoureux 
Attorney -General  v.  Mayor  of  New 

York 
Auburn  and  Catskill    Plank-road 

Douglass 
Auchincloss  v.  Nott 
Austin  v.  Chapman 

"      v.  Fuller 

"      v.  Lashar 

"      v.  Tompkins 
Averill  v.  Loucks 

"       v.  Patterson 

"       v.  Taylor 
Aycinena,'m  re 
Aylesworth  v.  Brown 
Aymar  v.  Chase 


19, 

85,86 


168, 


14,  68,  169. 
115. 


Section 

231,238 

244,  263 

251 

200 

276 

279 

284,  290 

296 

300 

300 

183,  239 

193,  212 

190,  193 

193 

161 

33,36 

161,  167 

288,  290 

90,  209 

Co.    v. 

90 

124,  142 

,  90,  105 

194 

302 

35 

233 

171,  306 

121 

30 

252 

238,  239 

163,239 


Backus  v.  Stilvvell 
Bacon  v.  Beading 
Badeau  v.  Mead 
Bagley  v.  Smith 

"      v.       '; 
Bagner  v.  Jones 
Bailey  v.  Dean 
"      v.  Easterly 
"      v.  Ryder 
Baird  v.  Walker 
Baker  v.  Curtiss 

"      v.  Hoag 

"      v.  Martin 

"      v.  Rand 

"      v.  Swackhamer 

"      v.  Williams 
Balbiani  v.  Grasheim 


25,  133,  312 

248,  276,  285 

29,  90 

206 

216,  275 

295 

112 

29,  U9,.146,  149 

11,  128,  235 

35,  97,  245 

135, 139 

159, 290 

213 

199 

75,  77,  78 

23,  129 

190 


XII 


INDEX  TO  CASES  CITED. 


Section 

Balcom  v.  "Woodruff  117,  130 

Baldwin  v.  City  of  Brooklyn  63 

Kail  v.  Syracuse  and  Utica  Railroad  Co. 

210,  218,  228 

Bander  v.  Burley  23,  256 

Bangs  v.  Gray  1Q5 

Bank  of  British  X.  A.  v.  Suvdani      31,  119 

"    of  Charleston  v.  Emetic  P>4 

"     of         "  v.  Hurlbnt  181 

"    of  Geneva  v.  Gulick  130 

"     of       "       v.  Hotchkiss    230,  27.5,  291 

"    of  Ithaca  v.  Bean  194 

"     of  Lansingburgh  v.  McKie 

13,  63,  70,  102,  194,  2S4 

"     of  Massillon  v.  Dwight  231 

"     of  Poughkeepsie  v.  Hasbrouck        157 

"     of  Yergennes  v.  Cameron  130 

"     of  Whitehall  v.  Weed  252,253 

Bantes  ▼.  Brady  212,213 

Barber  v.  Bennett  120 

"      v.  Cary  313 

'•      v.  Crossett  294. 295 

"      v.  Hubbard  77 

-      v.         -  129,253 

Barculows  v.  Protection  Co.  of  X.  J.       263 

Barker  v.  Dillon  77 

"      fv  Russell  82,129,253 

Barnard  v.  Wheeler  142,177 

Barnes  v.  Harris  13,  18,  23,  44 

v.  Perine  117,  196 

"       v.      •'  127 

Barney  v.  Griffin  10 

m  r.  Seneca  Co.  Bank  09,  287 

Barry  v.  Whitney  7,294 

Bartlett  v.  Mayor  of  New  York     45,  74,  97 

Barton  v.  Sackett  109,  128, 156,  L6£ 

V.  J  tines  66,  3()5 

v.  Stanton  157 

"     v.  Voorhies  117, 158 

Beach  7.  Forsyth  39 

v.  Gallup  130,151 

v.  Hayes  134,  146 

Beats  v.  Cameron  168 

'•     v.  Peck  130 

194,        1.:/ 

Beardsley  v.  Dicfcerson  l  rj,  177 

v.  Stover  117, 196 

v.  Copley 

23,  L99 

172 
93,  L38 
L59 
!  v.  Powell  G3,  i 

"      ..  -  L96,  L99,  300,306 

"      (  119,  121,  I 

ittaworth        277,  2  5,  29 

1 1 
12ft,] 
109, 

i 
119,  L4G,  1  .7,  Id? 

Bi  Iding  v.  '  lonldin 

■•     •. 

lord 

272 

Ill,  III 
1 17,  L96 


Section 

Bench  v.  Sheldon  132,  158 

Benedict  v.  Dake         111,  119,  121,  128,  146 
v.  Harlow  294 

"       v.  New  York  and  Harlem  R. 

R.  Co.  >        218,222 

"       v.  Seymour  108,  109,  121,  126,  150 

Benjamin  v.  Benjamin  308,  313 

Bennett  v.  Am.  Art  Union  90,  128,  197,  206 

v.  Brown  23,  75,  96 

"       v.  Chapin  105 

"■      v.  Dellicker  138, 232 

v.  Hughes  190,  191 

v.  Williamson  129,  158 

Benson  v.  Couchman  130 

"      v.  Fash  92 

Bentley  v.  Jones  109,  128, 150,  169 

v.    "         70,163,230,239,275,304 

Benton  v.  Bugnall  212,300 

"      v.  Sheldon  300, 304 

Betts  v.  City  of  Williamsburgh  90 

Bigelow  v.  Benton  130, 158,  252 

Billings  v.  Jane  130 

Birckhead  v.  Brown  157,  199 

Bisbey  v .  Shaw  158 

Bi>hop  v.  Morgan  176,  182 

Bissell  v.  Bissell  23,56 

Blackmar  v.  Yan  Inwager  63,  70,  181 

Blair  v.  Dillaye  285,  289,  290 

Blake  v.  Loey  18,  60,  66,  259,  283 

Blanchard  v.  Strait    41, 109,  111,  121, 122, 

127,128 

Blodget  v.  Morris  193 

Bl  >od  v.  Wilder  59,  78,  271,  277 

Bloodgood  v.  Bruen  36 

Blossom  v.  Adams  142 

Blunt  v.  Whitney  211 

Blydcnburgh  v.  Cotheal  259,  274 

Bogardus  v.  Parker  29,  158,  159.  166 

v.     "    30,126,133,154,158,312 

"        v.  Rosendale  Mas.  Co.      292,  300 

Bogart  v.  Yermilyea  225 

Bogertv.         "  36 

Boice  v.  Tar  e  :  206 

7.  Banks  296,  300,  316 

B  tlto  i  v.  Depi  yster  284 

eel  v.  Lynde     184, 1S8, 189,  191,  212 

Borrodaile  v.  Leek  2::,  206 

Borst  v.  Bpelman  219,  290 

Burt  v.  Smith  273 

::an  29 

Boutel  v.  Owens  10,  241 

Bouton  v.  City  of  Brooklyn         29,  90,  ] 

127,  2 

Bowenv.  Newell  10,  19,  289 

v.      ■•  130,  L99 

Bowers  v.  Emerson  21  6 

60,  hi   66,  69,  120,1  il 

v.       '•  175, 

Boyce  v.  I  1 12  255,  295 

"      v.  BroM  i  22, 109,  121,  1 16,  158 

•'      v.  Con  175,238 

199,  225 

n  v.  Iloyt  171 

Braden  v.  [take  298 

159 

V.  VanZandt  69,274,276 

ill  112 

193 

64,23 

Braodou  \.  I  ['I  136 

'i  133,  141,  158,213,313 

\ .  V,  i  |5(  L86,  189 

7 

91,  94 

urger  97 


INDEX  TO  CASES  CITED. 


Xlll 


Section 

Brewster  v.  Michigan  Central  R.  K.  Co. 

44,  97 

"        v.  Silence  31,130 

Bridge  v   Payson  154,  155,  161 

"      v.      "     30,109,158,160,161,169, 

170,197,245 

Brien  v.Clay  146,308 

Briggsrv.  Wells  199,  225 

Bright  v.  Currie  29,  121,  127,  151 

Bristol  v.  Rensselaer  and  Saratoga  R  R. 

Co.  128, 150,  158,  197 

Brittan  v.  Peabody  177 

Broadway  Bank  v.  Daufurth  66,  113 

Brockway  v.  Burnap  77,  131,  212 

v.  Stanton  181,  190 

Brodhead  v.  Broad  head  144,  238 

Brokaw  v.  Bridgman  lsl 

Bronson  v.  Freeman  142 

"      v.  Wiman  197, 199,  22.5 

«      v.      "  206 

Broome  Co.  Bank  v   Lewis  161 

Brophy  v.  Rogers  74,  75 

Brouwer  v.  Harbeck  105 

Brown  v.  Babcock  117,  190 

"       v.  Bcadshaw  175, 224 

"       v.  Briggs  55 

"       v.Brown,  22,273,289,291 

"       v.  Comstcck  294 

"       v.        "  300 

"       v.  Jenison  161 

"      v.  M'Cune  74,  31, 117, 129, 157,  168, 

196,197,199,219,253,284 

"       v.  Miller  238, 243 

"       v.  Orvis  121,158 

"       v.  Spear  168, 169 

"       v.  Stearns  271 

"       v.Tracy  5,250 

Browne  v.  Sootield  22,  273 

Browning  v.  Paige  182,  202 

Brownson  v.  Gifford       29,  30,  31,  133.  236, 

243,312 
Bruce  v.  Delaware  and  Hudson  Canal 

Co.  94, 283 

"      v.  Pinckney  230,284 

Bryan  v.  Brenuon  175,  2>>4 

Buck  v.  Waterbury  23,  173 

Hucklin  v.  Ford  33,  36 

Buckman  v.  Carnley     5,  66,  70,  80, 82,  256 
Buddington  v.  Davis  12;*,  158,  107 

Buell  v.  Trustees  of  Lockport  157,  199 

Buffalo  and  New  York  Central  R.  11. 

Co.  v.  Brainerd  197,  288,  200,  310 

Buffalo  and  State  Line  R.  11.  Co.  v. 

Reynolds  310 

Bulkeley  v.  Keteltas  206,  219,  220, 225 

v.        "  233,276 

"        v.        "  301 

"        v.  Smith  200, 235,  248 

v.      "  298 

Bullard  v.  Van  Tassell  7 

Bump  v.  Van  Orsdale  194 

Bunn  v.  Fonda  264 

Burbank  v.  Beach  29,  130,  199 

Burch  v.  Newberry  275,  316 

"      v.  Newbury  315 

Burckle  v.  Luce  292,  295 

Burdell  v.  Burdell  ISO 

Burdick  v.  Collins  290 

v.  M'Ambly  23 

"        v.  Post  157,  199 

Burget  v.  B^sell  108,  109,  121 

Burhans  v.  Casey  74, 162 

v.      "  162 

"       v.  Tibbits  208, 227 

v.      "  284,297 


Section 

Burhans  v.  Van  Zandt 

21 3,  21 S 

"       v.        " 

157,199,213 

Burkbardt  v.  Sanford 

0,97,248,252 

Burkle  v.  Ells 

9            74,  253 

Bumap  v.  Halloran 

117 

Burnett  v.  Harkness 

281,236,291,202. 

300.,  306 

Burnham  v.  De  Bevoise 

69,  170,  200.  23C 

Rurns  v.  Robbins 

66,79.86,87 

Burnside  v.  Brown 

303,305 

Burrowes  v.  Miller 

147,  174 

Burrows  v.      " 

45,  74,  97 

Burst  v.  Jackson 

358 

Burwell  v.    " 

158 

Bush  v.  Pettibone 

84.253 

"     v.  Prosser 

158, 199 

Bushnell  v  Bushnell 

73,  106 

Butler  v.  Miller 

2S9,  310 

"      v.  Wentwoith 

161 

Buzard  v.  Gross 

72,  255,  295 

c. 

Cahoon  v.  Bank  of  Utica  120, 134 

"      v.            "  109,120 

Calkins  v.  Brand  295 

"       v.  Williams  295 

Camden  Bank  v.  Rodsrers  29,  151,  239 

Cammanv.  Tompkins  45, 75,  97, 98, 100,102 

Camp  v.  Pulver  213 

"      v.  Tibbetts  75.77 

Campbell  v.  Ewalt  129 

Candee  v.  Lord  290 

Capet  v.  Parker  90,  95 

Carley  v.  Wilkins  149,  197,  218 

Carll  v.  Hart  35 

Carnrick  v.  Myers  252 

Carpenter  v.  Carpenter  290 

"         v.  Dennis  129 

"         v.  Haynes  290 

v.  Shelden  193, 199,  200,  225,  227 

"         v.Smith  206 

"         v.  Soooner  19, 44 

"         v.Stilwell  5,206,256 

v.  West  108, 121 

Carr,  in  re  19 

Carroll  v.  Carroll  33,  36, 146 

Carshore  v.  Huyck  30 

Carter  v.  Dallimore  273 

"       v.  Hamilton  29 

"       v.  Newbold  308 

Cary  v.  Williams  74,  105 

Cashmere  v.  Crowell  19 

v.  Dewolf  19 

Cassidy  v.  Meacham  259 

Castelianos  v.  Beauville  298 

"           v.  Jones  142 

v.      "  97.  98 

Castles  v.  Woodhouse  128,  158 

Caswell  v.  Bushnell  101 

Catlin  v.  Gunter         109, 117,150, 158, 177, 

190  199 

"     v.  Hansen                 158,  194,  196*  199 

"    v.  McGroarty  161 

Catskill  Bank  v.  Sanford  251 

"     v.        "  251 

Cayuga  Co.  Bank  v.  Warden  130, 190,  199 

Cemetery  Board  of  Hyde  Park  v.  Teller    41 

Chadwiek  v.  Brother  55,  295,  305 

Chamberlain  v.  O'Connor  32,  30S 

Chapman  v.  Fuller  252 

v.  Webb  117,  134 .  196 

Chappell  v.  Skinner  *  74,  85 

Chautauque  Co.  Bank  v.  White  105 

Chemung  Co.  Bank  v.  Judson 


XIV 


INDEX  TO  CASES  CITED. 


Sect'on 

Cheney  v.  Garbutt  129,  253 

Chichester  v.  Livingston  140,  190 

Cailds  v-  Geraghty  275 

Chittenden  v.  Missionary  Society  M.  E. 

Church  290 

Christopher  v.  Mayor  of  New  York  90 

Christophers  v.  Garr  36 

Chubbuck  v.  Morrison  13,  63 

Church  v.  Erben  213 

"       v.  Rhodes     213,  21S,  219,  274,  275, 

315,  316 

Churchill  v.  Bennett        90,  92,  94,  105, 156 

Clapper  v.  Fitzpatrick  112 

Clark  v.  Andrews  213 

"    v.  Bard  '33 

"     v.  Carnley  256 

"     v.  Crandall  218,  225 

"     v.  Harwood  109,  121,  128 

"     v.  Hutchinson  251 

"    v.  Mayor  of  Syracuse  90 

"     v.  Metropolitan  Bank  174 

"     v.  Pettibone  177 

"     v.  Bowling  74 

"    v.  Van  Dusen,  146,  150, 155, 167, 177 

"     v.  Vorce  226 

Ckirkev.  Crandall  316 

"     v.  Hughes  34,  109,  15S 

Clarks  v.  Staring  304 

Clason  v.  Corley       44,  45,  97, 117,  234,  24S 

"v.      "  244 

Clerk  of  Albany  Co.,  in  re  304 

Hickman  v.  Clickman    00,  06,  268,  274,  291 

Clor  v.  Mallory  41, 115 

Close  v.  Van  Husen  45 

Clute  v.  Clute  274 

Coan  v.  Osgood  158,  196 

Coatcs,  in  re  103 

"    v.  Coates  94 

Cobb  v.  Bows  126 

"    v.  [-'razee  146, 150,  167 

"    v.Thornton       235,236,238,244,252 

"    v.  Titus  158 

Cobee  v.  Davis  309 

Cochran  v.  Webb      158,  159,  100,  173,216 

Coddington  v.  Webb  92,  255 

( )ohn  v.  Coit  23 

313 

Coit  v.  (  oil  29 

"v.     "  52,109,132 

"  v.  Laiinbecr  60 

<  ole  v.  Jessup  S6 

'•  v.        "  3G,  199 

"  v.  97,  102 

"  v.  .  Itevi  at  86,  252,  27:; 

ni  v.  Wade  L57 

i  Mie  v.  Brown  290 

Collins  v.  Albany  and  Boh'o.  B.  P.,  Co.  226 

..       v          u  ..             ..             2]s 

"      i  803,313 

Colli, ml.  v.  Caldwell  231,  298,  300 

6,  ii.  70, 7*;, 

77,   I!!.    '     I 

96 
i  Soli  In  \.  Bragdi  n  138 

i  lomb   ■•■■  Bab  29,  193,  I'll 

rcial  Bank  v.  White  120,  i:;i.  ! 

<  lommli  '■•:>'  i   ol  '  ralnei  \  •  Albion  Plank 

Road  I  o.  289,310 

\ .  Albany 
rtbern  R   R   I  90 

I , 

and  Syracuse  Planli  Road  Co.      286,310 
ton, '"  " 
m  v.  Green 
Coautook  ••  B 


Section 

Coinstock  v.  Doe  193 

"        v.  Halleck  297,  298, 300 

"        v.  Hallock  169 

"        v.  Olmstead  295 

Conde  v.  Nelson  29,  31, 151,  239 

"      v.  Shephard  29,31,151,239 

Conger  v.  Bing  244 

Conklin  v.  Dutcher  70,  97,  98,  99,  102,  277, 

284  290 

"       v.  Vandervoort  156, 161 

Conro  v.  Gray,  105,  316 

"    v.  Port  Henry  Iron  Co.    11,  29,  109, 

131,  132,  194 

Conway  v.  Hitchins  13,  23.  63,  210,  233,  238, 

252,  257,  258,  259,  262,  271,  283 

Cook  v.  Dickerson  92 

"v.        "  284,  302 

"    v.        "  232,248,256,276,285 

"     v.  Genesee  Mutual  Ins.  Co.  29, 31, 127, 

157 
"    v.  Hill  129,  197 

"     v.  Litchfield       108,  130,  161, 199,  206 
"    v.  Newman  252 

"     v.  Bawdon  29,  52 

Cooke  v.  Passage  218,  225,  311 

Coon  v.  Syracuse  and  Utica  R.  B.  Co.  197, 

290 

Cooney  v.  Van  Bensselaer  253 

Cooper  v.  Chamberlain  23 

"      v.  Clason  146 

"      v.Jones  115,121,167 

Cope  v.  Sibley  181 

Corlies  v.  Delaplaine  119,  120,  163,  239 

Cornell  v.  Bennett  23,273 

"       v.  Smith  23 

Corning  v.  Corning  158,  196 

"      v.  Haight  155,  163,  239 

"      v.  McCullough  35 

"      v.  Smith  30, 138,  165 

"      v.  Tooker  105,263,264 

"      v.  Troy  Iron  and  Nail  Factory      90 

Corwin  v.  Cor  win  34,  156 

"      v.  Freeland  72,  129,  253 

Costigan  v.  Newland  127 

Cottrell  v.  Finlayson  40 

Countryman  v.  Boyer  265 

Craig  v.  Fanning  226 

Crain  v.  B  jwley  291 

Crandall  v.  Beach  41,  215 

Crane  v.  Crane  .116 

"    v.  Sawyer  25,  135,  313 

Crary  v.  Goodman  10S,  109, 158 

Craw  v.  Daly  273 

Crawford  v.  Whitehead  176 

Crist  v.  New  York  Dry  Dock  Bank  2ls,  287 

"     v.        "  "      "        Co.     218,287 

Crittenden  v.  Adams  55,  271,  275,  29 1 

Crofts  v.  Rockefeller  29s 

Cronk  v.  Whitaker  308 

I  Irooke  v.  Mali  197,  288 

Crugerv.  Douglass  284,316 

"      v.        "  290 

< 'me  v.  <  Irawford  90 

1  in  ii.-  v.  Baldwin  115,  16:! 

"      v.  Noyea  251,  258 

Curtis  v.  I  mi  ion  235,  295,  304 

"    v    Kei  9j 

v.  Follett  29 

Cuaaon  \.  Whalon        22,  55,  11:,,  1  r>  1 ,  169, 

175,  17(1,  182 

Cnyler  v.  Banford  158 

1). 

Dambmnn  \.  Empire  Mill    127,  17  1,  258,264 


INDEX  TO  CASES  CITED. 


XV 


Section 

Dana  v.  Fiedler  284,  302 

Daniels  v.  Hinkston  241 

"       v.  Lyon  235,  298 

Darby  v.  Comlit  142,295 

Darrow  v.  Miller    66,  94,  120,  161,  163, 169, 

230,  2.19 


Darvin  v.  Hatfield 

"      v.        " 
Dauchy  v.  Bennett 
Davenport  v.  Ludlow 
"  v.  Russell 

Davies  v.  Crabtree 

"      v.  Cram 
Davis  v.  Allen 
"      v.  Garr 
"      v.    " 
"     v.  Jones 
"■      v.  Lounsb'.iry 
"      v.  Marshall 


29,  244 

127,  244 

108, 148,  252 

205,  294 

41 

194 

36,  194 

290 

117 

29,  30,36,127 

22, 117 

271 

23,  75 

v.  Mayor  of  New  York  90, 93,  95,  255 


Packard 

"      v.  Peabody 

"      v.  Potter 

"      v.  Sehermerhorn 

"      v.  Turner 
Davison  v.  Waring 
Dayharsh  v.  Enos 
Dayton  v  Mclntyre 
De  Angelis,  in  re 
De  Courcy  v.  Spalding 


30 

252 

112,  156, 161,  163 

117 

24,  257,  266 

302 

18,  197,  205,  315 

56,  182 

19 

23 


Dolan  v.  Petty 
Dole  v.  Fellows 
Dollner  V-  (iibson 
Dolph  v.  White 
Dooiinick  v.  Eacker 
"         v.  Michael 
Donnell  v.  Cornell 
Doolittle  v.  Eddy 
Doran  v.  Dempsey 
Doremus  v.  Lewis 
Dorlon  v.  Lewis 


Section 

162,  243 

67,188 

109,  121,  131 

230,  284 

206,  235 
198 

273 

273,2!)7 

252 

168 


Dorr  v.  Birge 

"    v.  Noxon 
Doty  v.  Brown 


Dean  v.  Empire  State  Mut.  Ins.  Co.  175, 284 

Debaix  v.  Lehind  117,  129 

Decker  v.  Gardner  235,  284,  298 

"      v.  Matthews  130,  206 

Dederick  v.  Hoysradfc  90,  159 

Delacroix,  in  re  35 

Delafield  v.  Wright  19 

Delamater  v.  Russell  74,  126,  253 

Delpont  v.  De  Tastet  121 

Deming  v.  Kemp  159 

"      v.  Post  69,212,213 

Dempsey  v.  Tylee  288,  316 

Dennison  v.  Dennison  149,  156,  284,  290 

Denniston  v.  Mudge  195 

Denton  v.  Nanny  29,  30,  133,  244 

De  Peyster  v.  Wheeler  117, 196 
De  Ridder  v.  Sehermerhorn        27,  126,  130 

Desmond  v.  Wolf  69, 120,  163,  239 


Des  Places  v.  Goris 
Devaissms  v.  Devai3mes 
Dewey  v.  Hoag 

' '      v.  Stewart 
Dewitt  v.  Barley 
Dexter  v.  Gardner 
Diblee  v.  Mason 
Diblin  v.  Murphy 
Dickerson  v.  Beardsley 

"         v.  Kimball 
Dickinson  v.        " 


Dickson  v.  McElwain 
Didier  v.  Warner 
Diefendorf  v.  Elwood 

"         v.  House 
Diefendorffv.  Gage 
Dillon  v.  Horn 
Diraon  v.  Bridges 
Dix.v.  Palmer 


121 

158 

158, 159.  160 

300,  301 

199 

302 

41, 196,  238 

196 

115,  169,  238 

156 

183,  203 

302 

284, 302" 

154,  238 

196' 

171 

196 

90,  105 

133,  167 

41,  137,183,  231,238 


54,55,135,  182,274,275, 

276,  285.  2«7 

211,213 

272,  280 

105,213,  262,263,264 

157,  199 

220,  316 

64,  292,  300,  316 

213,  225, 312 

193 

146,  308 

23,  273 

135,  232 

304 

196,  198,  206 

85,  117,  126,  131,  134 

109,  121,  128 

68,88 

248, 308 


Doubleday  v.  Newton 

Doughty  v.  Busteed 
''        v.  Devlin 

Douglass  v.  Blackman 

Douoy  v.  Hoyt 

Dowling  v.  Bush 

Downing  v.  Mann 

Dows  v.  Green 
"     v.  Hotchkws 

Drake  v  Hudson  River  R.  R.  Co. 

Dressel  v.  French 

Dresser  v.  Ainsworth  225,  252 

"      v.Brooks,       55,277,281,291,292, 

300,  306 

"       v.      "  291,292 

"       v.  Shufeldt  252 

Drought  v.  Curtiss  153,  172,  264 

Droz  v.  Lakey  218,  232 

Drummond  v.  Husson  70,  230,  284,  300 

Duane  v.  Northern  R.  R.  Co.      10,  289,  290 


Dudley  v.  Hubbard 
"     v.  Mayhew 
Duel  v.  Agan 
Duffy  v.  Morgan 
Dunaher  v.  Meyer 
Dunbar  v.  Duffy 
Duuckle  v.  Kocker 
Dunham  v.  Dodge 
"      v.  Jarvis 
"      v.  Nicholson 


Dixwell  v.  Wordsworth  ]  1 2 

Dobson  v.  Pearce  108, 157, 159, 160,  199 

"      v  Racey  193,213 

Dodd  v.  Curry  300 

Dodge  v.  Averill  193 

"    v.  Rose  63,  181 

Doke  v.  Peek  $9  213,  231 


Dunlop  v.  Edwards 
Durfee  v.  Eveland 
Durkee  v.  Mott 
"      v.  Saratoga 
R.  R.  Co. 
Dutcher  v.  Slack 

Dutchess  Cotton  Man.  Co.  v.  Davis 
Dutton  v.  Dutton 
Dwight  v.  Enos 
Dyckman  v.  McDonald 

v.  Mayor  of  New  York 


145,  249 

9 

68,  129 

271 

74,  75,  77 

21,  297,  306 

23, 199,  273 

36 

90,  105 

290 

24,  35,  132, 189,  316 

289,  293,  315 

23 

213 

and    Washington 

111,  126,  148 
117 


Dykers  v.  Woodward 


127 

51,  157 

236 

302 

19,  199 


45,  156,  249 


E. 


Eastman  v.  Caswell 
Easton  v.  Chamberlin 
Eaton  v.  North 
Eckerson  v.  Spoor 
Ecles  v.  Debeand 
Eddy  v.  Howlett 
Edson  v.  Dillaye 
Edwards  v.  Lent 

"        v.  Stewart 
Eggleston  v.  Orang 
R.  R.  Co. 


252 

56,  182 

181 

255,  295,  300,  303,  305 

138 

13,63 

109, 121 

121,  156 

199 

and  Alexandria 

97 


XVI 


INDEX  TO  CASES  CITED. 


Section 

Ehlev.  Moyer  171,209,234 

Eickhoff,  in  re  9,308 

Ellice  v.  Tan  Rensselaer  256 

Eilieott  v.  Mosier  29,  30,  133, 157,  158 

Elliott  v.  Hart  139, 155 

Ellis  v.Jones  183 

"   v.  Meritt  23 

Ellsworth  v.  i  rOoding  223,  300,  302 

Elson  v.  Xew  York  Equitable  Ins.  Co.    231 
Elwood  v.  Diefendorf  35 

Emerson  v.  Burney  284,  285 

Eoiery  v.  Emery  40,  141,  245,  252,  258 


Engle  v.  Bonneau 
Engs  v.  Overing 
Eco  v.  Crooke 

"  v.  Wood  worth 
Enoa  v.  Thomas 


Erickson  v.  Compton 

Erwin  v.  Smaller 

Esmond  v.  Van  Benschoten 


252,259,260,  266 

138 

236 

109, 121,  128 

31, 126, 130 

115,  175 

290 

213,  220,275,287 


Section 

Fitch  v.  N.  Y.  and  Erie  R.  R.  Co.    2 

Fitzhugh  v.  Wilcox  28,  1 17 

v.  Wiman  23(i 

Fin  eg  v.  Hunger  175,316 

"      v.  Thurber  298 

Flaminer  v.  Kline  156,  161 

Fleming  v.  Hollenback  1 S 1 

Fleury  v.  Brown  156,161 

"     v.  Roget  75,121,156,161 

Flint  v.  Richardson  302 

Florence  v.  Bates  92,94 

v.  Bulkley  28,  38,  142 

Floyd  v.  Dearborn  108,  109,  121 

Flynn  v.  Hudson  River  R.  R.  Co.  41, 44.  48, 

137 


Esterly  v.  Cole 
Estus  v.  Baldwin 
Everitt  v.  Lisk 
Everts  v.  Palmer 
Evertson  v.  Thomas 


29,  193 
69,  119.  120, 
121, 182 
219,  290 

236,  269,  -.'73,  295 

23 

194 

45 


Exchange  Bank  v.  Monteath     G7,  137, 183 


F. 


Fabbricotti  v.  Launitz     119, 121,  146, 159. 

174 
Falconer  v.  Elias  77 

"      v.  Ucoppell  54, 145 

Falon  v.  Keese  194 

Farmers'  and  Mechanics'  Bank  v.  Pad- 
dock 1 
Farmers'  Loan  and  Trust  Co.  v.  Carroll  289 
•'                      "             v.  Hunt 

90,  159,  164,  173,  174,  195 

Farnham  v.  Farnham  255 

Farrell  v.  Calkins  23,  235,  27:'. 

Fay  v.  Grimsteed  108, 109,117,158, 196,  206 

Fellers  v.  Lee  33 

Fellows  v.  Emperor  22 1 ,  315 

v.  8heridan  221,300 

tewart  194 

Ferguson  v.  Ferguson  278 

v.       ••  225,  289 

L5 

"v.  111.  255 

Field  v  9,  1  12 

•'    v.  Hawxhnnt  1 17.  L33,  284,  244 

"    v.  Mayor  of  New  York  L28 

"    v.  Mom       11, 12  "    138,248, 

253 


"      v.  Stouo;hton 
Foggv.  Child" 
Follett  v.  Jewitt 
"      v.  Weed 
Forbes  v.  Locke 
Fordv.  Babcock 
"    v.  Monroe 
"    v.  PeeriDg 
Forrest  v.  Forrest 


Forrester  v.  Wilson 
Fort  v.  Bard 
"    v.  Gooding 


30,  147 

23 

121.  15.S 

67,  185,1-7.  283 

300, 306 

19,36 

231,  304 

146 

73. 106 

73 

29,117 

90 

290 

193,  194 

"    v.        "    "  295,302 

Fort  Plain  and  Cooperstown  Plank  Road 

Co.,mre  218,284 

Fosgate  v.  Herkimer  Manufacturing  and 
Hydraulic  Co. 


"    r.  Park 
Finch  v.  Cleveland 
Finohly  v   Mills 
Finley  v. .) 
Finnerty  v.  Ba 

of  Alba  iy  v.  Bay 


LIS,  117,  L21,  i   9 

51 
193 
816 

295 

112,  L29 
276 
802 


Foster  v.  Agassiz 
"      v.  Bowen 
"     V.Cleveland 
"      v.  Hazen 
^  "      v.  Pdell 

Fowler  v.  Houston 

Fox  v.  Gould 
"  v.  Hunt 
"    v.  Jackson 

Eraser  v.  Greenhill 
"      v.  Phelps 

Frazer  v.     " 
"      v.  Western 

Frees  v.  Ford 

Frost  v.  Willard 

Fry  v.  Bennett 

Fuller  v.  Emeric 
"       v.  Fullerton 
"      v.  Squire 
"      v.  Sweet 
Fullerton  v  Tayl<  r 
Furniss  v.  Brown 
v.      " 


30,  133 

181,  305 
300,  306 

295 

23,  146,  147 

145,  249 

302 

211,  302 

196 

23 

31,96,  103 

108,  ls^,  212 

188,  212 

'  292 

is,  15 

75.  98,  101 

119,  129,  146,  156,  L58, 

167,  170,  200 

73 

28 

231,303 

182,  202 
L96,  L98,  236 

92,94,96,  U7.  L26 
L72 


G. 


<!ago  v.  Angell  159,  160 

v.  Travis  72 

i  lale  i .  Boysradl  224 

"    v.  Trustees  of  School  District        296, 

308,  310 


"       v    H.,11 

"     v.  Bigelovr 
v.  Devlin 
v.  Llvii 


"     v    Wrnon 
"     v. 

■'       V.      " 

i  rallagher  v. 

.  iattie 
Jheldon 
Liner  v.  Clark 


165,  172.  306 

194 

112,  113 


70,249,284,290 

47,  304,306 

316 

177,  211 

L39,  149,  165,  L61 


INDEX  TO  CASES  CITED. 


XV11 


Section 

Gardner  v.  Board  of  Health  127 

"      v.  Kelly  142 

"     v.  Oliver  Lee  &  Co.'s  Bank       108, 
130,157,  158 


Garr  v.  Selden 

Garvey  v   Fowler 

Gates  v.  Brower 

Gay  v.  Paine 

Geislerv.  Acosta 

Geller  v.  Hoyt 

Gelston  v.  Marshall 

Genesee  Mutual  Ins.  Co.  v.  Moynihen 

Genet  v.  Tallmadge 

Genin  v.  Tompkins 


158 

109,128,130,101,163 

29,  20G 

130 

313 

63,  68,  70,  233 

185,  186 

156 

157 


94,  284,  289,  307 
45,  97,  100, 102 
Gent  v.  Mayor  of  New  York  127 

George  v.  M'Avoy  60,  112,  115 

Georgia  Lumber  Co.  v.  Strong  55 

Geraghty  v.  Malone  272 

Gere  v.  Supervisors  of  Cayuga  40 

Getty  v.  Hudson  River  R.  R.  Co.    108, 115, 

132, 134 
»      v.  "  "  HI,  128, 

146, 148,  201 
54 
130 
294 
193,  194 
150 
5,  209 
199 
45,  75,  97,  98, 102 
168 
220,  232,315 
231 
295,  299 
19,  108 
90 
231,  232 
4?55,112,113 
109, 128, 131,  148,  151, 
239 

120,  154 
158 

109, 128, 157 

231 

121 

142, 177 

105,  132,  258 

130 

20,  213,218,221,  225, 

286 

230,  300 

142, 177,  211,  302 

182 

121,158 

121,  158 


Gibson  v.  Murdock 
Giessonv.  Giesson 
Gihon  v.  Fryatt 
Gilbert  v.  Averill 
"     v.  Davies 
"     v.  Luce 
"      v.  Sheldon 
"     v.  Tompkins 
Gilchrist  v.  Stevenson 

"       v.        " 
Gildersleeve  v.  Halsey 
Giles  v.  Halbert 

"    v.  Lyon 
Gillott  v.  Kettle 
Gilmartin  v.  Smith 
Gilmore  v.  Hempstead 
Glenny  v.  Hitchins 


Goch  v.  Marsh 
Godfrey  v.  Townsend 
Goelet  v.  Cowdrey 
Goldsmith  v.  Marpe 
Gooding  v.  M'Allister 
Goodrich  v.  Vanderbilt 
Goodyear  v.  Betts 

"        v.  Watson 
Goulard  v.  Castillon 

Gould  v.  Carpenter 
*'      v.  Chapin 


Gray  v.  Nellis 

"    v.  Schenck 
Green  v.  Brown 

"    v.  Bullard 

"    v.Clark 

"  v.  Hicks 
Greene  v.  Bates 
Gregory  v.  Levy 

"       v.  Weiner 
Gridley  v.  Daggett 

"       v.  McCumber 
Griffin  v.  Cohen 

"      v.  Dominguez 

"      v.  Griffith 

"     v.  Sutherland 
Griffing  v.  Slate 
Grigg  v.  La  Wall 
Grimm  v.  Grimm 
Grinnell  v.  Schmidt 
Griswold,mre 
"        v.  Miller 
"        v.  Sheldon 
Grogan  v.  Lindeman 
Groshonsv.  Lyons 
Grover  v.  Coon 

"     v.  W&keman 
Grub  v.  Mayor  of  New  York 
Gunter  v.  Catlin 


Section 

119,  121,  129 

31 

211,  213 

93,  259,  262 

199,  289 

259 

171 

77,81,82,157,161,167 

72,  75, 253 

289 

129,  251,  253 

115,  1G3,  203 

30,  258 

13,  20,  63 

252 

69,  94,  214 

218,  316 

95 

29 

(    37,  97,  98 

30, 44,  136 

18 

126 

164,  168, 173 

289,  316 

31 

30 

109,  117,  196 


H 

Habicht  v.  Pemberton  ' 
Hackett  v.  Richards 
Hager  v.  Danforth 

"     v.         " 
Haggart  v.  Morgan 


v.  Homer 
v.  Horner 
v.  Hudson  River  R.  R.  Co.  128 

Williams  109, 121,  158 

90 
105,252 
285,  289,  290 
175 
00,  64, 112,  113,  145 
218,  302 


Goulding  v.  Bain 
Gouverneur  v.  Warner 
Gracie  v.  Freeland 
Graham  v.  Golding 
"        v.  McCoun 
"        v.  Milliman 
"        v.  Stone 
"        v.  Van  Wyck 
Granger  v.  Schwartz 
Grant  v.  Lasher 
"      v.  McCaughin 
"      v.  Quick 
Graves  v.  Blanchard 

"       v.  Friend 
Gray  v.  Fox 
"    v.  Griswold 
VOL.   I.— 2 


29,  30,  127 

112,  154,  156,  197 

184,  225 

300, 304 

45,  74,  77,  97,  102, 

157,  206,  308 

132 

218,  287 

203 

148,  159, 160 

146, 155, 294 

252 

115 

302 

302 

29 

109,  128 

30,  38,  44, 147 

295 


158 

29 

19,  48,  97, 102 

148 

145,  201,  249 

90,  108 

210,  211,  299 

130 

175,  284,  290 

256 


Haight  v.  Badgeley 

"     v.  Prince 
Haines  v.  Davies 
Haire  v.  Baker 
Hall  v.  Bartlett 

"    v.Fisher 

"   v.  Huntley 

' '  v.  Parker 

"   v.  Prentice 

"  v.  Robinson 

"   v.  Southmayd 

"  v.  Taylor 
Hallenbeck  v.  Miller 
Hallock  v.  Losee  36 

Halsey  v.  Carter  159 

Hamilton  v.  White  34 

Hamilton  and  Deansville  Plank  Road 

Co.  v-  Rice  194 

Hammersley  v.  Hammersley  30, 31, 133,  312 
Hammond  v.  Baker  147, 174 

v.  Hazard  222 

Hance  v.  Remming  156,  161 

Hancock  v.  Salmon  23 

Handly  v.  Greene  199,  265 

Haner  v.  Bliss  175 

Hanson  v.  Tripler  [103,  259 

Harev.  AVhite  117,304 

Hargous  v.  Stone  199 

Haring  v.  N .  Y .  and  Erie  R.  R .  Co .        206 
Harlow  v.  Hamilton  109, 119, 121, 146, 

161,170 
Harmony  v.  Bingham  196 

Harrington  v.  Higham  235,  308 


Harris  v.  Bennett 

"      v. 
Harris  v.  Clark 

"     v.  Ely 


276 
194 
290 
180 


XV111 


INDEX  TO  CASES  CITED. 


Section 

Harris  v.  Roofs  Ear.  199 

»     v.  Scofield  231 

"     v.  Whitney  308 

Harrison  v.  Newton  90 

Hart  v.  Kremer  41 

Harthouse  v.  Rikers  252 

Hartman  v.  Spencer  177 

Hartnese  v.  Bennett  1G3,  239 

Hartwell  v.  Kingsley  94 

Hasbrouck  v.  MeAdani  142 

v.  Vandervoort  29,193 

Hascall  v.  Madison  University  90,  92 

Hassard  v.  Rowe  51 

Hastings  v.  McKinley  218,  220,  222 

v.         "  171,268,291 

"       v.         "        29, 171,  193,  197,  288, 

290 

Hatch  v.  Weyburn  259,  260,  262,  284 

Hatfield  v.  Bloodgood  171 

"      t.  Ross  218 

Hauselt  v.  Taussig  302 

Haverly  v.  Becker  233 

Havilandv.  White  290,308 

Hawkins  v.  Appleby  196 

Hawley  v.  Seymour  176,  301 

Hayes  v.  Symonds  213 

Haywood  v.  Judson  312 

Hazard  v.  McFarland  132 

Hazleton  v.  Wakeman  290 

Heesv.Snell  79,277 

Heidenheimer  v.  Lyon  21,  270 

Heilbronn,  in  re  308 

Heilner  v.  Barras  23 

Heller  v.  Heller  29,  44 

Hempstead  v.  Hempstead  G3, 70,  112, 117 

Henderson  v.  Cairns  33,  199 

"        v.  Easton  29,  163 

Henry  v.Henry  193 

Hentz  v.  L.  I.  R.R.  Co.  94 

Herkimer  Co.  Mutual  Ins.  Co.  v.  Puller    121 

Hernstein  v.  Mathewson  97 

Herrick  v.  Taylor  78,142,  271,  277 

Herring  v.  Hoppock  252,  256 

Iler-«nheim  v.  Hooper  259 

Hewitt  v.  Howell           41,  48, 137,  175,  202, 

238,  248 

Heydev.  Heyde  132,175,243 

Hickokv.  Hickok  36,  127,  157 

flicks  v.  Foster  225 

••      v.  Hicks  286 

"      v.Hinde  130,158 

'•      v.  Waltermire  225,  302 

llirl:-'.-;  Will,  in  re  68 

liitrirms  v.  Allen  ''I 

'•       v.  Bishop  184,186,188,189 

Hill  v.  I  219,228,290 

"    •.    Draper  199 

"  v.  McCarthy        108,109,120,  168,207 

"   v.  Muller  H2 

"  r.Thactei  88,  11,  52,  L12,  124 

Hinohmaii  v.  Butler  W2,  177 

Hind    ■■■  Schenectady  ( !o.  Mutual  Ins. 

I  0l  804 

.<      v.  M\  108,298,299 

"     r.Tweddle  127,  lis 

Ilinman  v.  Bergen  300 

v.  Judson  1"   .  169 

Hoard  v.  '  tamer  292,  303 

T(  oni     ee  Marine  an-l  Fire 

Inil  2-1,290 

rTodgman  v.  Wei  tern  B.  a  ■  Oo.        29,  1 17 

Hoffman  v.  Btepheni  194 

Hogan  v.  Brophy  286 

Hogg  v.  Efflii  L05,  132 

ilolbrook  v.  Honderoon  30 


Section 

Holbrook  v.  Homer  74,  77, 82 

Hollenbeckv.VanValkenburgh  27,193,  194 

Hollister  v.  Livingston  113, 115, 144 

v.  Spafford  262 

Holman  v.  Dord  193 

Holmes  v.  Brown  28 

v.  Holmes  141,  157 

"       v.  Honie  171,235,248 

"       v.  St.  John  296,297 

"       v.  Slocum  176,212 

Holyoke  Bank  v.  Haskins  128 

Hoodless  v.  Brundage  297 

Hoogland  v.  Hudson  29,  148 

Hooker  v.  Matthews  187 

Hopkins  v.  Everett  156, 166,  167 

Horner  v.  Wood  128 

Hornfager  v.  Hornfager      115, 117, 172,  305 

v.         "  147,155 

Hough  v.  Kohlin  200,  262 

Houghton  v.  Latson  117 

v.  Skinner  117, 172 

"        v.  Townsend  159 

Hovey  v.  McCrea  90,  91 

Howard  v.  Franklin  Marine  and  Fire 

Ins.  Co.  161 

"       v.  Henriques  90 

"       v.  Michigan  Southern  R.  R. 

Co.  146, 150, 154, 168 

"       v.  Rome  and  Turin  Plank  Road 

Co.  302 

"        v.  Sexton  129, 158 

v.  Tiffany  108,  109,  121,  132 

Howe  v.  Muir  211,  302 

"       v.  Peckham  126 

Howell  v.  Fraser  119, 146 

"      v.  Kinney  213 

"       v.  Ruggles  199 

Howland  v.  Fort  Edward  Paper  Mill  Co. 

#  29,  149 

v.  Willetts  194,  206,  219 

v.        "  197,  199,  206,  219 

Hoxie  v.  Cushman     109, 128,  130,  140,  155, 

196 

Hoyt  v.  Am.  Exchange  Bank  185, 186,  189 

"     v.  Carter  285 

"    v.  Loomis  176 

"    v.  Martense  30,  244 

"     v.VanAlstyne  5,252,256 

Hubbard  v.  Guild  90,  105 

"       v>  Livingston  112 

Hudson  River  R.  R.  Co.  v.  Outwater       286 

Huff  v.  Bennett  19,64,219,  220 

"     v.      "  129 

Hughes  v.  Mulvey  231 

Hulbcrt  v.  Hope  Mutual  Ins.  Co.         i  I,  97 

v.  Newell  29,52,142 

Hulbert  v.  Fuller  251 

Hulce  v.  Thompson  90 

"     v.        "  126 

Hull  v.  Hull  177 

"    v.Peters  141,800,806 

"    v.  Smith  121,  161,  L68 

'«    v.    "  81 

I  [umphreya  v.  Chamberlain  1 16,  166 

Hunt  v.  Farmers'  Loan  and  Trust  Co.     90, 

108,  IV.) 

"     v.  Uaih  1*3 

v   Meaobam  112 

Huhi  r  v.  Frisbee  148 

v  Osterhoudt  197 

Iliinl  v.  lii'cinan  273 

••     v.  Hunt  158 

"    v.  Learenwortb  238 

Hutohinionv.  Brand  5, 76, 253,256 

"     v.  Chainbcrlin  252 


INDEX  TO  CASES  CITED. 


XIX 


Hyatt  v.  Burr 
Hyde  v.  Conrad 

"    v.  Lynde 
Hyland  v.  Stafford 
Hynds  v.  Griswold 


Section 

90 
148,157,107 
105 
313 
121 


90, 

109 


316 
236 

121 
63 


IddiDgs  v.  Bruen 

Ingalls  v.  Morgan 

Ingersoll  v.  Ingersoll 

Inglehart  v.  Johnson 

Ingraham  v.  Baldwin  29,  133, 149  150,  155 

19b,  I'M  ,  OLO 

Irvine  v.  Forbes  23>  273 

Isham  v.  Williamson  120, 156, 168, 1<0,239 


Section 

Keator  v.  Ulster  and  Delaware  Plank 

Road  Co.  "j| 

Keegan  v.  Western  R.  R.  Co.  1  jl 

K^lervV;Knbury  186,187,190 

Keep  v.  Lord  159 

Keesev.  Wyman  ...    ™ 

Keese's  Exrs.  v.  Fullerton  117,  19b 

Kellogg  v.  Church  ^ 

'«        v.  Klock    31,  52,  238,  249,  299,  305 


Jacks  v.  Nichols 
Jackson  v.  M'Burney 
"        v.  Sanders 
"        v.  Wheedon 
Jacobs  v.  Hooker 
James  v.  Andrews 
"      v.  Chalmers 


"      v.  Kirkpatrick 
"      v.  Patten 
"      v.  Stuyvesant 
Jarvis  v.  Clerk 
Jaycocks  v.  Ayres 
Jenet  v.  Dusenbury 
Jennings  v.  Fay 
Jeroliman  v.  Cohen 
Jewett  v.  Jewett 
»'       v.  Miller 
Johnson  v.  Anderson 

"        v.  Cayuga  and  Susquehanna 
R.  R.  Co. 
v.  Jillitt  70,  142,  177,  303,  305 

v.Snyder  31,117,132 


199 

300 

117,  196 

23,  35 

55 

313 

130, 199 

194,  290 

284,  289,  290 

41 

10,289 

90 

184,  186, 189, 190 

158 

29,  248 

306 

115,  117 

22,  154 


23 


Olmsted 
"        v.  Paine 
Kelsey  v.  Bradbury 
"       v.  Griswold 
"       v.  Western 
Kemeys  v.  Richards 
Kemp  v.  Harding 
Keteltas  v.  Maybee 
Keyserv.  Waterbury 
Kidd  v.  Dennison 
Kiddle  v.  Degroot 
Killian  v.  Washington 
King  v.  Dennis 
"    v.  Dowdall 
"     v.  Duntz 

"    v.  Merchants'  Exchange  Co 
"    v.       " 
"    v.  Stafford, 
"    v.  Tuska 
"    v.  Utica  Ins.  Co. 
"     v.  Vanrlerbilt 
Kingsley  v.  Vernon 
Kinkaid  v.  Kip 
Klenck  v.  De  Forest 
Kloppenberg  v.  Neefus 
I  Knehne  v.  Williams 
Kneiss  v.  Seligman 
Knickerbacker  v.  Aldrich 

"  v.  Loucks 

Knight  v.  Wilcox 
Knopfel  v.  Senfert 
Knowles  v.  Gee 
Krom  v.  Hogan 
"      v.  Schoonmaker 


"        v.  Wetmore 
»        v.  White 
"        v.  Wilson 
"        v.  Yeomans 
Johnston  v.  Bryan 
Jones  v.  Alston 
"     v.  Atterbury 
"      v.  Bradner 
"     v.  Kip 
"     v.  Lawlin 
"     v.Osgood 
"     v.  Patterson 
"     v.  Porter 
"      v.  Russell 
Jordan  v.  Garrison 
Judd  v.  Fulton 
"    v.  Young 


30,  245,  246 
184 
199 
35 
269,  274 
213 
105,  263,  264 
156,  158 
85, 103 
31,90 
22, 154 
102 
290 
23,  56 
313 
145,  249 
284, 290 
163,  230,  238,  287 
259,  263 
121,  156,  168 
149, 177 
130,  157, 158 
112 
23,271 
74, 253 
85,86 
148,  149, 150,  167 
194 


113 

129 

130 

108,  109 

92,95 

218 


K. 


Kaine,  in  re 
Kanouse  v.  Martin 


Kasson  v.  Mills 
Keating  v.  Anthony 


31, 121,  146, 172 

148 

90 

193 

268,  276 

63,  139 

157 

90 

101 

238,  287 

251,  257.  260 

199,206,  290 

29 

259 

183 

177,  183 

56,  144 

31,  103 


9,  308 

296,  300 

232 

11,  203 

289 

23,  273 

297 


Labar  v.  Koplin  193 

Ladue  v.  Van  Vechten  193 

Laforge  v.  Chilson  141 

Laimbeer  v.  Allen        60, 112,  113, 145, 218 
v.  City  of  New  York 


Mott 
Lakev.  Gibson 
Lakey  v.  Cogswell 
Lalliette  v.  Van  Keuren 
Lamoreux  v.  Morris 
Lane  v.  Cole 

"    v.  Columbus  Ins.  Co. 

"     v.  Doty 

"    v.  Gilbert 

"    v.  Gould 

"     v.  Morse 
Lang  v.  Ropke 
Langdon  v.  Wilkes 
Langley  v.  Hickman 
"        v.  Warner 


Lanning  v.  Cole 
Lansing  v.  Cole 
"  v.  Russell 


218 

289 

66 

22,  289,  291 

213,  312 

184 

29 

36 

158,161,103,238 

34,  199, 225 

60,  112, 154 

39,  225 

64 

211 

27G,  277 

292 

219,  228,  290 

243,  313 

295 

10,  278,  2S9,  290 

199,  219 


XX 


INDEX  TO  CASES  CITED. 


Section. 

158, 1G1 
29 
252,  308 
297,  298 
308, 313 


Lansingh  v.  Parker 
Lasher  v.  Lasher 
Latson,  in  re 
Launitz  v.  Barnum 

"        v.  Dixon 
Lawler  v.  Saratoga  Mutual  Fire  Ins 

v.  Kidder  \f 

Lawton  v.  Sager  £L 

Leach  v.  Kelsey  5  IrVm  W 

Learned  v.  Vandenburgh  5,  44, 100,  101, 

Leaycroftv.  Fowler  175 

Lecomte  v.  Jerome  10J,  ^ 

Ledyard-v.  Acker  ^° 

''      v.  Jones  5, 256 

(,       Vi    «  225 

Leev.  Averill  IP 

::  -Brush  121 

»    v.  Heirberger  ^ 

Leeds  v.  Dunn  \f 

Lefevre  v.  Latson  i" 

Leggettv.Mott  218,  287 

Lehretter  v.  Koffman  sus 

Lent  v.  Hodgman  *;>« 

Lentilhon  v.  Mayor  of  New  York  232  274 

475,  111, 
Leopold  v.  Poppenheimer  41, 109,  75, 

Leroy  v.  Bedell  '  Jg 

«      v.  Halsey  259,  2bi 

"     v.  Marshall  _     108 

Lettmanv.Ritz  1",  1 29,  190 

Levi  v.  Jakeways  i".  i« 

Lewis  v.  Acker  f;«|,  f°4 

«      v.  Kendall  109, 156, 15b,  167 

«      v.Smith  29,30,133,244 

"      v.  Truesdell  77 

Lienan  v.  Lincoln  109,  128 

Lin  v.  Jaquays  11- 

Linden  v.  (Jraham  lzy 

v   Hepburn  19,90,108,109,133, 

134,  236,  311 

Lindsay  v.  Sherman  258,  259,  260,  283 

Lindsley  v.  Almy  275 

Lintner  v.  Snyder  34 

Lippencott  v.  ( ioodwin  109,  111,  144 

Lippman  v.  Joelson  141 

Litchfield  v.  Burwell  44,  45,47,  52, 175, 

210,  249 

v.   Pelton  94 

Lithaner  v.  Turner  77 

Little  v    Keon  194 

Littlefleld  v.  Murin  138 

Livingston  v.  (lcaveland  259 

"           v.    l-'inklo  156,  161 

«          v.  Bndson  K.  It.  Co.            88,  90 

v.  Miller  216 

v        "  300 

v.      "  223,  278,  291 

v.  Etadoliff  219,  228,  290 

t.  Tanner  128,  L83,  L99 

Lock  wood  v.  [saaci  21 

"          v.  'I  III  213 

Logan  v.  Ferris  258 

Loom]  ■  v.  l»ornliimcr  LB0,  168 

I ■  v.  Ilognri  808 

Lord  v.  Cheiebroagfa        121,  180, 156,  166, 

i  .  .  L68 

Lord  st,  tabu  v.  Lad;  Bt,  John  I  H 

[and  v   Bosmer  168 

Lovel]  v.  Clarke  ,;7,  186 

Lovettv  German  informed  Church         11 


Section 

Lovett  v.  German  Reformed  Church        255 

«       v.Robinson  irT  i« 

Low  v.  Payne  "i*,  185 

Lowenstein,  in  re  ^45,  4oa,  £oa 

Lucas  v.  Johnson  £»»  ^ 

«     v.  Trustees  of  Baptist  Church  of 

Geneva  17fl 

Luce  v.  Trempert  y0 

Ludington  v.  Taft    132,  149,  155,  «5,  m, 

Lusk  v.  Lusk  2^ 

Lyle  v.  Murray  ?° 

Lyme  v.  Ward  30 o,  316 

Lynch  v.  Livingston  * 

J<>      v.  Macbeth  271, 273 

«      v.  Mosher  U2, 177 

"       v.Welch  252 

Lynde  v.  Cowenhoven  440,  £d4 

»      v.  Verity  U5>  249 

Lyon  v.  Marshall  206,  225 


M. 

McAllister  v.  Albion  Plank  Road  Co.        18 

McArthur  v.  Lansburgh  458,  459 

McCafferty  v.  Kelley  ^ 

McCarthy  v.  Hancock  176,  184 

"         v.  Marsh  ^ 

McCormick  v.  Kehoe  264 

"  v.  Pickering 

McCotter  v.  Hooker  180 

McCrackan  v.  Cholwell  4JO 

"  v.Valentine 

v.Ware  90,105 

McCrane  v.  Moulton  *1 
McCurdy  v.  Brown      85, 128, 131, 199,  23b 

McDermott  v.  Palmer  308 

ii                   y_           "  oU8 

McDonald  v.  Edgerton  225 

McDuffie  v.  Beddoe  41 
McEwen's  Exr.  v.  Public  Admr.       45, 171 

McFarlan  v.  Clark  1.4 

"        v.  Watson  i->i 

McGafflgan  v.  Jenkins  145,  249 
McGowan  v.  Morrow         121, 158,  299,  314 

McGown  v.  Leavenworth  113, 145 

McGregor  v.  Brown  199 

McGuire  v.  Gallagher  n<    too 

Mclvcnzie  v.  L'Amoureux  29,  10J 

McKillipv.McKillip  28 

McKnight  v.  Chauncey  91,  94,  lit 

"          v.  Dunlop  199,  225 

McKoan  v.  Devries  7 

McLees  v.  Avery  },\'iJ 

McMahon  v.  Harrison  484,  im 

a          yt        ii  274,  27j 

McMaster  v".  Booth  108, 175,  238 

McMullin  v.  GrannisB  36,  19o 
MoMurray  v.  Gifford  109,  128, 156, 183,  239 

McNamara  v.  Bitely  22, 154 

McSmith  v.  Van  Deusen  251,  254 
McSorley  v.  llogan 
Maher  v.  Comstock 

Mains  v.  Haight  130,158,252 

Mairs  v.  Kemsen  14*J 

Malcolm  v.  Miller  90,91 

Maleom  v.  Baker  l1' 

Malcomb  v.  Jennings  •'J1'* 

Mallory  v   Lamphear  WJi    ;.'7 

Mi heater  v.  Storrs  146,  l.»0 

Mandeville  v.  Whine  L36,  139,  146 

Manleyv.  Patterson  75,  77,  h? 

Mann  v.  Brooks  40,  00, 92,  234,  248 

"     v.  Faircbild  35 


INDEX  TO  CASES  CITED. 


XXI 


Mann  v.  Morewood 

«     v.  Tyler 
Manning  v.  Guyon 

<<  v.  Johnson 
Marquatv.  Marquat 
Martin  v.  Gage 

<<       v.  McCormick 
<<       v.  Vanderlip 
"       v.  Wilson 
Marvin  v.  Seymour 
Mason  v.  Brown 
<<     v.  Jones 
«      v.     « 
"      v.     " 
<<     v.  White 
Masten  v.  Scovill 
Masters  v.  Barnard 


Section 

23  35 
Mills  v.  Winslow  M6  ^  '163 

Milnv.Vose  Reformed 

Minister,   &c.,   ot    ^     •„  „  Wnnrl  2S8 

Church  of  Canajohane  v.  Wood  ^ 

Minks  v.  Wolf  92  109  132 

Minor  v.  Terry  30o 

Minturn  v.  Mam  216  231  302 

itchdlVv:  Montgomery     6' 

^WeServelt     255,295,300,301, 


v.  liarnara  ,  T      n/> 

v.  Madison  Co. Mutual  Ins.  Oo. 


Mixer  v.  Kuhn 
Moffatt  v.  Ford 
Moir  v.  Brown 
Monteith  v.  Cash 
I  Montgomery  v.  EVhs^ 


303,  304 
177 

69,  202,  302,  306 

142 

23,  273 

58,234,230,249 

310 


Matteawan  Co.  v.  Bentley 
Mathews  v.  Beach 
Matthewson  v.  Thompson 
Mattison  v.  Jones 
Maxwell  v.  Farman 
Maynard  v.  Talcott 
Mayne  v.  Griswold 
Mayor  of  New  York  v.  Hillsburgh 
cc  <*  v.  Pnco 

V.        " 

«  "v.  Schermerhorn 

Mead  v.  Mead 
Meakim  v.  Anderson 
Meakings  v.  Cromwell 
Mechanics'  Bank  v.  James 
Mechanics'  and  Farmers'  Bank  v.  Bider^ 


Megary  v.  Funtis 
Megrath  v.  Van  Wyck 

"        v.        " 
Meldora  v.  Meldora 
£chant  v.  New  York  Life  Ins.  Co.^  87. 

Merchants'  Mutual.Ins.  Co.  of  Buffalo 


Montgomery  Co.  Bank  v.  Alta^Crt^  . 

v.  Marsh 
Moore  v.  City  of  New  York 
v.  Evans 
v.  Gardner 
v.  Moore 


r .  Eaton 
Merrick  v.  Suydam 
Merrifield  v.  Cooley 
Merrill  v.  Tyler 
Merritt  v.  Seaman 
"       v.       " 
"       v.  Sloeum 
"       v.      " 
«'      v.  Wing 
Mersereau  v.  Pearsall 
Mesick  v.  Mesick 
Messenger  v.  Fisk 
Messerve  v.  Sutton 
Meyer  v.  Schultz 
Mier  v.  Cartledge 
Milhau  v.  Sharp 
Millard  v.  Shaw 
Miller  v.  Garlock 
"     v.  Gunn 
"     v.  Hull 
"     v.  Lewis 
"     v.  Mather 
"     v.      " 
v.  Moore 


27,29,108,127 
74 
108,193,235,245 
15  < 
197 
29, 127,  159 
13,63,168 
65,  66 
251 
226 
194 
259 
290 
158 
109,  128,  161 
90,  236,  255 
132, 146 
34 
171,268,291 
124,  142 
233,  252 
186,187,190 
140 
308 


v.  Penti 
v.  Thayer 
v.  Westervelt 
v.        " 
Morehouse  v.  Crilley 
Morewood  v.  Hollister 
Morgan  v.  Avery 
v.  Bruce 
v.  Frees 
v.  Leland 
Morris  v.  Brower 
"      v.  Husson 
Morrison  v.  Ide 
Morse  v.  Cloyes 
1 '     v.  Crofoot 
"     v.  Evans 
"     v.  Keyes 
Morss  v.  Morss 
Mosier  v.  Hilton 
Moss,  in  re 

"     v.  Averill 
Mottv  Burnett 


55, 194 
29 
129 
142, 177 
284,  286 
244 
185 
45,  97, 171 
295 
224  289 
109,  128 
308 
45,  97,  102,  284 
218,  208,  287,  290 
199 
115,  238 
221 
130,  213,  290 
300,  301,  303,  305,  306 
157,181,  194,196,197 
194 
220 
252 
194,  211 
18 
303 
10, 289 
112,  156,  161 


"     v  Moore 

Millered  v.  Lake  Ontario,  &c,  R.  R-  Co.  310 

Milligan  v.  Brophy  \\\ 

Milliken  v.  Byerly  "": 

"       v.Cary    92,108,109,121,128,132 

Mills  v.  Corbett  **'  »' 

«    v.Thursby 


Mott  v  riurnew  --  _, 

Moule  v.  Macedon  and  Bnstol  FlanK 

Road  Co.  TTr  . 

Mucklethwaite  v.  Weiser 
Muir  v.  Leich 
Mulford  v.  Decker 
Mullen  v.  Kearney 
Mulligan  v.  Brophy 
Mullin  v.  Kelly 
Mulvey  v.  Davison 
Munson  v.  Hagerman 
v.  Hegeman 
v.  Willard 
Murphy  v.  Darlington 
v.  Kip 
v.  Mooney 
Murray  v.  Haskins 

"      v.  Smith 
Muscott  v.  Miller 
Myers  v.  Feeter 
v.  Gemmel 
v.  M'Carthy 
v.  Rasback 


310 
213,  316 
233,252 
271 
109,  128,  239 
24S,  249 
175 
74 
193,197,235,288 
193,  197,  235,  288 
138 
142 
122,  225 
23 
295 
206,  225 
23 
177 
90 
190 
25, 133,  312 


N. 

Neass  v.  Mercer 
Neefus  v.  KloppenburgU 


194, 316 
109,  128, 131, 
151, 163,  239 


XX11 


INDEX  TO  CASES  CITED. 


Section 

Neele  v.  Berryhill  3,  40,  232,  241 

Neff  v.  Clute  23,  273 

Nellis  v.  De  Forrest   284,  300,  301,  303,  305 
Nestle  v.  Jones  295 

Neustadt  v.  Joel  90,  132,  25S 

New  York  and  Erie  R.  R.  Co.  v. 

Coburn  310 

«  "        v.  Cook  194,  197 

"  "        v.  Corey  310 

New  York  Fire  Ins.  Co.  v.  Burrell  302 

New  York  Life  Ins.  and  Trust  Co. 

v.  Eand  64,244 

Newbury  v.  Newbury  66,  90.  94 

Newcomb  v.  Keteltas  143 

Newman  v.  Cook  129,  252 

"        v.  Newman  29 

1  "        v.  Otto         121, 140, 156, 158,  167 

Newton  v.  Harris  277,  292 

v.      "  290 

v.  Sweet's  Exrs.  295,  297 

Nichols  v.  Jones  119, 146,  156, 161 

Nicholson  v.  Dunham     64,  70,  283,  2S5,  300 


v.  Leavitt 
Niles  v.  Griswold 

"    v.  Lindsley 

"     v.  Randall 
Niver  v.  Rossman 
Nixon  v.  Palmer 
Noble  v.  Trotter 

"      v.  Trowbridge 
Nolton  v.  Moses 
Nones  v.  Hope  Mutual  Ins.  Co 


10, 19,  289 

284,  290 

158, 198,  297 

31 

302 

180 

55 

163,  239 

218 

218,  287 

44,  69,  137, 

147,  154 

235 


Norbury  v.  Seeley 

North  American  Fire  Ins.  Co.  v. 

Graham  121,252,258 

Northrop  v.  Anderson       175,  236,  243,  312 

v.  Van  Dusen      66, 142, 177,  305 

Norton  v.  Coons  130 

Noxon  v.  Bentley  300 

"      v.      "     '  128, 148,  166, 167, 24* 

"      v.  Gregory  294 


Oakley  v.  Aspinwall 


nT.ri.n  v.  f'atlin 
"        v.  Ha^an 
v.  Peten 
Ogdenabnrgb  Bank  v 
Olcott  v   wood 
D  v.  Smith 

'  >im  bead  v.  Loomii 
1 1] in  rted  r.  Brown 

Olw'-ll  v.  M    I 
( Orchard  v.  <  Iron 
O'Reilly  v.  I  taviea 
<  tobora  v.  LobdeU 
Oibornc  v.  Betl 
"       \ ,  liarqaand 
ii  v.  Bizby 
Oswego  and  Byraonae 

I  KlIHt 

Otll  v  1 

"    v.  Sill 

"  v.  Bpenoer 
tonroeppel 
Owcdh  v.  A.0K61  on 


1,  10,  289 

10,19,97,  Id  I,  L99, 

245,  289 

04,216,21:1,222 

71,  97,  101,245 

54,  144, 145 

171 


Paige 


199 

147 

S08 

91,92 

90 

129 

111,  245 

213,287 

297,  298 

66,  94 

302 

20'.) 

121,  167,  I'll 

Plank  I  toad 

127 

11,  122,  166,  161    ■'    I 

36,  109,  L26,  134,  168 

13,  68,  216,  '. 

22.".,  308 

169,  BOS 


Section 

Pack  v.  Mayor  of  New  York 

30, 127 

"    v.           "           " 

30, 194 

Paddock ,  in  re 

105 

Palmer  v.  Lawrence 

10, 19,  289 

"      v.        " 

29,  292 

Park  v.  Carnley 

142, 177 

"     v.  Church                    40, 

241,  248,  252 

"     v.  Hitchcock 

23,  273 

Parsons  v.  Brown 

199,  206 

"       v.  Nash 

159 

"       v.  Pierce 

193 

"        v.  Travis 

90 

Partin  v.  Elliott 

190 

Partridge  v.  McCarthy 

239 

"         v.  Thayer 

23,271,273 

Paton  v.  Westervelt 

40, 256 

Patridge  v.  Ford 

313 

Patterson,  in  re 

18,64 

Pattison  v.  Taylor 

109,121,158 

Paulding  v.  Hudson  Manufacturing  Co.  23 

Payn,  in  re 

69,  308 

Payne  v.  Young 

19,  97,  98 

Pearsoll  v.  Fraser 

196,  315 

Peck  v.  Elder 

29 

"     v.  Foot 

271, 308 

Peebles  v.  Rogers 

13,  55,  63 

Peets  v.  Bratt 

130 

Penfield  v.  AVhite 

93 

People  v.  Adams 

256 

"      v.  Aichinson 

205 

"      v.  Albertson 

309 

"      v.  Arnold 

34,  157,  167 

"      v.  Banfield 

310 

"     v.  Banker 

141,  157, 167 

"     v.  Barber 

30S, 310 

"      v.  Baron 

278, 280 

"     v.  Canal  Board 

308 

"     v.  Carpenter 

193 

"      v.  Clarke 

284,  302 

"      v#      <. 

34,167,309 

"      v.  College  of  Physicians  and 

Surgeons 

69,  308 

"      v.  Commissioners  of  Plaintield    286, 

310 

"     v.  Compton                  90, 

"      v.  Cook 

309 

"      v.     " 

124,142,309 

"     v.     " 

206,219,  225 

"      v.  Cooper 

19,  28,  308 

"     v.  Cram 

159,  193,  198 

"      v.  Uikeman 

60,  308 

"     v.  Dodgo 

209 

"      v.  Downing 

199,  286 

"      v.  IOdmonds 

308 

"      v.  Kldridgo 

271,  274,  275 

"      v.  (Jilbert 

316 

"      v.  (loodwin 

308 

"      v.  Hayes 

142,177 

"      v.  Ilendrickson 

L99 

"      v.  Hicks 

12 

"      v.  Hulbert           13, 18 

,  63,105,  269, 

268,  264 

"      v.  King                     105 

256,264,284 

"       v.  1 

264 

"      v.  Lemmon 

19,808 

"     v.  Livingston 

84,  l.r.7 

"      v.  Mayor  of  Now  York 

128,  L58, 

L99,  308 

"     v.  Metropolitan  Bank 

90 

"      v.  Meyer 

160 

"       V.  Newell 

808 

"      v.  Norton 

L97 

"      v.        " 

252 

INDEX  TO  CASES  CITED. 


XX111 


Section 

People  v.  Overseers  of  Barton  308 

"      v.  Overseers  of  Ontario  308 

"      v.  Perry  308 

"      v.  Porter  11, 19,  308 

"      v.  Schuyler  5,  86 

"  v.  Sheriff  of  Westchester  9,  308 
"      v.  Steele  316 

"  v.  Sturtevant  19,  90,  93,  95,  255 
"*'  v.  Supervisorsof  Dutchess  Co.  308 
*"      v.      "  of  Fulton  Co.  308 

"     v.      "  of  Greene  Co.         308 

"     v.      "  of  Westchester  Co  30S, 

310 

"      v.      "  "  308 

"     v.  Townsend  308 

"      v.  Trustees  of  School  District       308 

"     v.  Van  Dusen  300 

"     v.  Van  Leuven  308 

"     v.  Van  Rensselaer  34 

"      v.    "  "  34,  157, 167 

"      v.  Vermilyea  181 

"      v.  Webb  177 

"     v.  Wood  35 

"      v.  Woods  116 

"      v.  Wright  177 

Pepper  v.  Goulding  218,  287 

Perkins  v.  Cottrell  29 

"       v.Warren  91,94 

Perry  v.  Griffin  304 

"     v.  Livingston  298,  300,  304 

"     v.  Montgomery  97 

"     v.  Moore  284,  290 

Person  v.  Warren  28,29 

Pester,  in  re  267 

Petition,  in  re  a  19 

Pettit  v.  King  126 

Phelps  v.  Brooks  259 

"     v.  Cole  38,  105 

Phenix  v.  Townsend  142 

Phillips  v.  Drake  171 

"      v.  Wright  308 

Phincle  v.  Vaughan  117, 129,  158, 196, 

219,284 

Picabia  v.  Everard  69, 176,  234 

Pierce  v.  Crane  251,  252 

Pierrepont  v.  Barnard  158 

Pierson  v.  Cooley  109,  128,  239 

Pike  v.  Lent  74 

"     v.  Van  Wormer  111,  126, 129 

Pillow  v.  Bushnell  29, 193 

Pindar  v.  Black  31,  41,  60,  75 

Plumb  v.  Whipples  115,  156,  203,  249 

Plummer  v.  Plummer  40 

Poillon  v.  Houghton  296 

Pomroy  v.  Hindmarsh  75,  90,  91 

v.  Hulin  141, 164,  182 

Poor  v.  Horton  33,  34 

Porter  v.  Cass  92,  205,  313 

"       v.  Jones  289, 300 

v.  Lee  236,  243 

"       v.  McCreedy  109, 156,  15S 

"       v.  Williams  105, 264 

Post  v.  Coleman  4,40,  112 

"    v.  Westervelt  301 

Potter  v.  Smith  168,  169, 170,  183,  203 

Powell  v.  Rust  297 

Powers  v.  Elmendorf  187 

Pratt  v.  Gulick  130, 158, 199 

Price  v.  Powell  219,  290 

Pringle  v.  Phillips  85 

Prior  v.  Tupper  90 

Pugsley  v.  Aikin  126 

v.  Kesselbnrgh       22,  273,  289,  291 

Pulling  v.  People  54,  56 

Pulver  v.  Hiserodt  198, 300 


Purdy  v.  Carpenter 
"     v.  Harrison 

Putnam  v.  De  Forest 
"       v.  Putnam 
"       v.  Van  Buren 


0- 


Section 

129, 148,  158 
271,  275 
121,  166 

109,  121,  132 
171 


Quackenbush  v.  Ehle  213 

Quick  v.  Grant  105, 158 

"      v.  Keeler  35,  132, 189 

Quin  v.  Chambers  121, 163, 166, 169 

R. 

Radcliffe  v.  Van  Benthuysen  55 

Radley  v.  Houtaling  172 

Radway  v.  Mather  109, 151 

Rae  v.  Washington  Mutual  Ins.  Co.        151, 

161, 163, 169,  230,  239 

Ranney  v.  Smith  130, 159 

Ransom  v.  Halcott  5,  101 

v.Miner  252 

Rathbone  v.  Stanton  225 

Rawdon  v.  Corbin  45 

Raynor  v.  Clark  17.  81, 128, 149,  230, 

249,  287,  288 

Ready  v.  Stewart  97 

Reddy  v.  Wilson  6G 

Reed  v.  Barber  23,  273 

"    v.  Childs  133, 158,  312 

"    v.  Latson  119, 146,  158,  159 

Reese  v.  Reese  69 

Reformed  Presbyterian  Church  of 

New  York,  in  re  310 

Reid  v.  McNaughton  36 

Remin  v.  Nagle  74 

Renouil  v.  Harris  3, 175,  211,  213,  220, 

232,  275 
Rensselaer  and  Washington  Plankroad 

Co  v.  Wetsel  109,121 

Reynolds  v.  Brown  199 

"         v.  Champlain  Transportation 

Co.  208, 225 

V.Davis  19,199 

"  v.     "  233,315 

v.  Freeman    70,230,280,284,285 

"         v.  Hamil  308 

Ricart  v.  Townsend  109, 126 

Rice  v.  Floyd  289,  290,  316 

"    v.      "  225,290 

"    v.  Wright  302 

Rich  v.  Beekman  277 

"     v.  Husson  194,  235 

"     v.        "  296,  315 

Richards  v.  Allen  213 

"        v.  Varnum  252 

Richardson  v.  Craig  75 

v.  Wilton  156 

Richmond  v.  Russell  305 

Rickards  v.  Swetzer  183,  231,  238 

Rider  v.  Deitz  305 

Ridgeway  v.  Bulkley  171 

Ring  v.  McCoun  19 

"     v.  Mott  181 

Ripple  v.  Gilborn        29, 133,  155,  236,  238, 

243,  312 
Ritterband  v.  Maryatt       21,  256,  258,  259, 

270 

Robalinda  v.  Armstrong  28 

Robb  v.  Jewell  224 

Roberts  v.  Gee  190 

"       v.  Law  162 

"       v.  Morrison  130,  230,  284,  300 


XXIV 


INDEX  TO  CASES  CITED. 


Roberts  v.  Randel 

74,  85,  131 

"       v.  Thompson 

190 

"       v.  Willard 

86 

Eobinson  v.  Frost 

156, 193,  198,  235 

"       v.  Stewart 

156 

"        v.  Weeks 

265 

"       v.  West 

23,  273 

"        v.     " 

23 

Robison  v.  Lyle 
Roche  v.  Farran 
"      v.  Ward 
Rochester  and  Syracuse  Railroad  Co 

v.  Budlong 
Rochester  City  Bank  v.  Suydam 


225 
190 
45 


Rockefeller  v.  Weiderwax 
Rodgers  v.  Rodgers 
Roe  v.  Rogers 
"    v.  Swezey 
Rogers'  Administrator,  in  re 

"    v.  Hern 

"    v-  Mouncey 

"    v.  Rathbone 

"     v.  Rathbun 

"    v.  Runyan 

"    v.  Wing 
Romaine  v.  McMillen 
Roome  v.  Webb 


Roosa  v.  Saugertie3  and  Woodstock 


286, 310 

108, 109 

121 

128,  129 

300,  306 

90,  126,  134 

121,  158,  161 

30,  34,  126 

35 

132 

316 

120 

113, 115,  202 

310 

225,  311 

69,  234,  312 

90,92 


Turnpike  Road  Go 
Roosevelt  v.  Brown 
Root  v.  Foster 
Roscoe  v.  Maison 
Rosenfield  v.  Howard 
Rosenthal  v.  Brush 
Ross  v.  Clussman 
Roth  v.  Schloss 
Row  v.  Row 
Rowell  v.  M'Cormick 
Roy  v.  Harley 

"     v.  Thompson 
Royce  v.  Brown 
Ruggles  v.  Fogg 
Rundell  v.  Butler 
Rusher  v.  Morris 
Russell  v.  Clapp 

"      v.  Gray 

"  v.  Spear 
Rutter  v.  Tallis 
Ryan  v.  M'Cannell 


120, 166 

300 

109, 121,  129 

112,  159,  166 

23,  96,  97,  98 

156,  158 

95,  258 

23,  196 

25, 133,  312 

55,  275 

7,  248 

176, 182 

109,  146,  156, 15S 

141,  159,  297,  298 

129 

165 

109,  128,  156 

5,  44,  85,  86,  87,  157 

115 

105,  264 

238 


Section 

Sawyer  v.  Warner  156, 199 

Sayles  v.  Woodin  109,  156,  158,  167 

Schenck  v.  McKie  13,  55,  56,  63,  64, 144,  177 
Schenectady  and  Saratoga  Plank  Road 

Co.  v.  Thatcher  220,  282 

Schermerhorn  v.  American  Life  Ins.  & 

Trust  Co.  158 

"  v.  AndersoD  276, 277 

"  v.  Develin  63 

v.      "  69, 175, 211 

"  v.  Golief  271 

"  v.  Mayor  of  New  York 

275,316 

"  v.Mohawk  Bank  290 

"  v.  Van  Voast     231,  303,  304 

Schneider  v.  Jacobi  141 ,  159,  297,  298 

"         v.  Schultz  158,  161 

Schoolcraft  v.  Thompson  40,  60 

Schoonmaker  v.  Reformed  Prot.  Dutch 

Church  of  Kingston  92 

Schouton  v.  Kilmer  252 

Schroeppel  v.  Corning  35 

v.      "  110,  128 

167,  200 
316 
206 
119, 146, 156,  163,  239 
213 


Schwab  v.  Furniss 
Scott  v.  Becker 

"     v.  Pentz 
Scovell  v.  Howell 
Scranton  v.  Baxter 
Scudder  v.  Voorhis 
Seaman  v.  Duryea 
Sears  v.  Gearn 

"    v.  Shafer 
Seaver  v.  Robinson 
Secor  v.  Roome 
Seeley  v.  Chittenden 

"      v.  " 

Seely  v.  Prichard 
Selden  v.  Vermilya 

"       v.        " 
Selkirk  v.  Waters 


31 

286 

97,  101,  245 

35, 157 

44 

129,253 

226,  284 

218,  226 

275 

94,  284,  289,  290,  316 

292 

193 

Seneca  Co.  Bank  v.  Garlinghouse    115,  169 


Sackett  v.  Ball  302 

3«U)kett'8  Harbor  Hank  v.  Burwell  284 

1  v.  Drew  29, 127,  128 

St.  Aniant  v.  l)e  Beixcedon  !is,  102 

St.  John  v.  West  171,284,290 

Sale  v.  Lawson       13,  63,  252,  258,  269,  '.'(,  I 

64,216 

119,  M6,  15ftj  lei;    167 

1  -~>7 '  _>  ]  '2 

146,249 

::o2 

286,  288 
Saratoga  and  Washington  It.  R.  Co.  \ . 

McCoy  230,284,800 

29 


Bales  v.  Wooden 
Salinger  v.  l.u.nk 

Salter  v.  Malcolm 
't,  v    l)ownes 
v.  Sands 
Sanford  v.  Crangor 


Sartos  v.  Hero  que  i 
Katterlee  v.  Pr&zi  r 
v.  Darrow 
"       v.  Belyea 

Sawyer  v.  Schoonmaker 


5,76,80,  82,  256 

294 

300,  305 

61,  70,  144,283,  285 

57,66,69,111,113 


Servoss  v.  Stannard 
Seward  v.  Miller 

Seymour  v.  Judd 
Shaw  v.  Jayne 
Sheldon  v.  Albro 
"        v.  Allerton 

v. 
"        v.  Barnard 
"        v.        " 
"        v.  Carpenter 
"        v.  Havens 
"        v.  Martin 
"        v.  Paine 
"        v.  Pelton 
"        v.  Weeks 


92,94 

146, 156,  161,  163, 

166, 167 

286 

108,  109,  128, 129 

18,  286 

92 

302 

275 

316 

126 

171 

183 

5,  44,  70 

29,  30 

175,  190 

105,  2S4,  316 

175 

199 

252 

132,  139 

269,  273 

156,  161 

290 

290 


"        v.  Wood 
"        v.  Wright 
Shclton  v.  Westervelt 
Shepard  v.  Walker 
Sheridan  v.  Mann 
Sherman  v.  Hushnell 
"       v.  Daggett 
"       v.  Pell 
"      v.  Rochester  and  Syracuso  R 

R.  Co.  127 

"       v.  Wakeman  86, 206 

"      v.  Youngs  286, 300 

Sherwood  v.  Uttlefield  259 

"         v.  Saratoga  and  Washing- 
ton It.  R.  Co.  23 
"         v.  Steele                                  177 
Shore  v.  Shore  29 


INDEX  TO  CASES  CITED. 


XXV 


Short  v.  May 
Shuart  v.  Taylor 
Siefke  v.  Tappey 
Silliman  v.  Eddy 
Simmons  v.  Johnson 
Simpkins  v.  Page 
Simpson  v.  Loft 


Section 

135,  232 
211,213 
74 
159, 166 
213,218 
23, 259 
166 


Sipperly  v.  Troy  and  Boston  R.  R. 

Co.  109,121,128 

Sisson  v.  Barrett  219,  228,  290 

Slocum  v.  Hooker  31, 169 

v.  Wheeler  150,  163,  239 

Small  v.  McChesney  274 

Smedes  v.  Wild     '  90 

Smethurst,  in  re  267 

Smith  v.  Austin  95 

"        v.  Briggs  159 

v.  Brinkerhoff  159 

v.  Brown  146, 151 

v.        "  203 

"       v.  Caswell  222 

"       v.  Dan  vers  90, 105 

"       v.  Dipeer  19 

"       v.  Edmonds  74 

"       v.  Falconer  23 

"       v.  Greenin  119,  167 

"      v.  Hallock  121, 126 

"       v.  Johnson  262, 264 

"       v.  Jones  305 

«       v.    "  35,159 

"       v.  "Joyce  23, 273 

"      v.  Keeler  297 

"      v.  Lockwood  29,  90, 109, 128 

"       v.  Lowden  294 

"       v.  Lynes  300 

«       v.     «  276 

"      v.  McAllister  34 

"       v.  Maince  308 

''       v.  Manice  308 

«       v.  Moffatt  90 

«       v.  Norval  142 

v.  Olssen  141.162 

"        v.Reno  90,92 

"       v.  Shufelt  122,  156,  163,  239 

"       v.  Waite  121, 158, 199 

Snell  v.  Loucks  219,  287 

Snyder  v.  Andrews  129 
v.  White          69,  115, 144, 156, 164 

"        v.  Young  295 

Southart  v.  Dwight  188 

Southworth  v.  Curtis  112 ,  238 

Soverhill  v.  Dickson  30,  38,  44 

Spalding  v.  King  308 

"       v.      "  308 
"       v.  Spaulding,  77,  85,  86, 117, 126, 
131,  134 

Spaulding  v.  Kingsland  289,  290,  316 

Spear  v.  Cutter  90 

"      v.  Hyers  294 

Spellman  v.  Weider  130, 150, 163,  239 
Spencer  v.  Saratoga  and  Washington 

R.  R.  Co.  219,  273 
"        v.  Utica  and  Schenectady  R. 

R.  Co.  213 

"        v.  Wheelock  27, 108,  111,  126, 
149,  206,  235 

Spicer  v.  Norton  11, 199 

Spies  v.  Joel  '  74 

Sprague  v.  Cadwell  199 
Spring  Valley  Shot  and  Lead  Co.  v. 

Jackson  298 

Springsted  v.  Robinson  112 

Sprong  v.  Snyder  302 

Squire  v.  Elsworth  238 

"       v.  Flynn  75, 253 


Section 

Stafford  v.  Onderdonk  298,  306 

"      v.  William3  194, 252 

Stalker  v.  Gaunt  184, 186,  189 

"         v.      "  184,186,189 

Stanley  v.  Anderson  238 

v.  Webb  129 

Stannard  v.  Mattice  112, 147,  235,  245 

Stanton  v.  Delaware  Mutual  Ins.  Co. 

185,  186 

Staples  v.  Fairchild  98 

Starr  v.  Kent  74 

Steam  Navigation  Co.  v.  Weed       216, 276 

Stephens  v.  Browning  252 

"       v.  Moore  64,  139 

"       v.  Strong  212 

Stephenson  v.  Hall  28 

Sterne  v.  Bentley  141,  235,  245 

Stevens  v.  Eno  252 

Stewart  v.  Bouton  109,  121 

v.  Elwell  175 

"       v.  Howard  74,  77 

v.  Kissam  30,  126 

Stiles  v.  Comstock  121, 158,  161,  199 

Stimpson  v.  Reynolds  5,  86,  256 

Stimson  v.  Huggins  231,  232 

Stockbridge  Iron  Co.  v.  Mellen       109,  121 

128,  129 

Stoddard  v.  Cleveland  127 

"        v.  Long  Island  R.  R.  Co.      9,  197, 

225 
"        v  Onondaga  Annual  Confer- 
ence   109,  128,  167,  168,  170, 
200 
Stokes  v.  Hagar  120,  163,  239 

Stoll  v.  King  74 

Stone  v.  Carlan  95,  285 

"      v.        "  ♦  90 

"      v.  De  Puga  109,  121 

"     v.  Duffy  297,  298 

Story  v.    "  276,285,287 

"     v.  New  York  and  Harlem  R.  R. 
Company  269 

Stoutenburgh  v.  Vandenburgh  40,  97, 

101,  245,  252 
Streety  v.  Wood  129 

Stright  v.  Vose  259 

Striker  v.  Mott  22 

Stroud  v.  Frith  199,  206,  225 

Strout  v.  Curran  163,  238,  248 

Stryker  v.  Lynch  133,  147,  312 

Sturgis  v.  Law  19 

"      v.  Merry  219,  290 

Sturtevant  v.  Fairman  70,  305 

Stuyvesant  v.  Pearsall  90 

Sullivan  v.  Brewster  308 

v.  Decker  30,  31,  308 

"       v.  M'Donald  271 

Suydam  v.  Ewing  9,  142 

v.  Holden  11,  06,  250 

"        v.  Jenkins  85 

Swarthout  v.  Curtis  51 

v.      "  214,  289,  290 

Sweet  v.  Bartlett  294 

Sweezy  v.  Thayer  244 

Swift  v.  Dewitt    41, 146, 148,  163,  239,  251 , 

297 

"     v.  Falconer  23 

"     v.  Hart  225 

"     v.  Hosmer  112,  113 

Syme  v.  Ward  305 


T. 


Taggard  v.  Gardner 


190 


XXVI 


INDEX  TO  CASES  CITED. 


Taggard  v.  Roosevelt  313 

Tallman  v.  Green  100, 122,  125 

Tanner  v.  Hallenbeck  5,  35,  76,  250 

Taylor,  in  re  80 

"      v.  Church  158 

"       v.      "  171 

"      v.  Corbiere  56, 130,  151 

"      v.Gardner  295,297 

"      v.  Mairs  190 

"      v.  North  74 

"      v.  Seeley  273, 300 

"      v.  Stevens  90 

Teall  v.  Van  Wyck     130, 197,  271,  277, 315 

Temple  v.  Murray  156, 161 

Ten  Broeck  v.  Hudson  River  R.  R.  Co.  276, 

285,  287 

Terry  v.  Rubel  186, 189 

Thatcher  v.  Bank  of  the  State  of  N.  Y.  290 

"        v.  Dusenbury  90 

Thayer  v.  Mead  171 

Thomas  v.  Clark  305 

v.  Dickinson  132,  158 

v.  Harrop  112,  166 

Thompson  v.  Blanchard  64,  220 

v.          "  193 

v.          "  277 

"         v.          "  316 

v.  Dickerson  97, 194, 197,  206 

"         v.  Hopper  _    271 

v.  Krider  176,  182,  212 

"         v.  Starkweather  284 

"         v.  Valarino  30 

Thumb  v.  Walrath  158,  167 

Thursby  v.  Mills  90 

Tilley  v.  Phillips  10,  289,  290,  316 

Tillotson  v  Hudson  River  R.R.  Co.  90 

Tillow  v.Vere  260 

Tillspaugh  v.  Dick  300,  304,  305 

Tippel  v.  Tippel  29 

Todd  v.  Cooke  105,  264 

Tomlinson  v.  Van  Vechten  45,  23S 

Tompkins  v.  Soulice  290 

"         v.  White  126,  133 

Toomey  v.  Shields  135, 138,  232 

Towner  v.  Towner  29 

TowDsend  v.  Townsend  25,133,313 

Townshend  v.  Tanner  90 

Tracy  v.  Humphrey  156, 161,  162,  23s 

"      v.        "  231 

"      v.  Leland  74 

"      v.  Reynolds  48,138,139,176 

"      v.  St.. no  298 

Trapp  v.  New  York  and  Erie  R.  R.  Co.    41 

Traver  v.  Silvernail  F63,  232,  27fi 

"     v.  Traver  25,  L83,  308,  812 

Travis  v.  Tobias  11,11.  97,  101,  135 

"      v.      "  117,196,224 

Tripp  v.  Childa  L82 

"     v.  Del  low  54,274 

"      v.  Ilil.y  119.  15.', 

I  v.  Latson  184,  189 

Troy  and  Boston  EL  El.  Co.  7.  Lee  286,310 

"    and  Kntland  EL  I.'.  Co.  T.  Cleveland 

310 

Truax  v.  Cluto  68,  I  (4,  271 

Trotcott  v   Dole         109,  L12,  L21,  154,  156 

v.  King  211,  2  is 

"       v.     "  296 

1  rn  teeeofPenn  Van  v.  Porbei     121. 182, 

284,  286 

••■   Eta  btoii  109,  128,  131 

Torek  v.  EUohmoad  28,  1 17,  273 

Turner  v.  ComHtock  130,151 


Union  Mutual  Ins.  Co.  v.  Osgood    128, 146, 

151,  155 


Vail  v.  Rice 
Valarino  v.  Thompson 
Vallance  v.  King 
Van  Allen  v.  Humphrey 
Van  Benthuysen  v.  Lyle 


199 
30,  245 

218,  225 
29,  132 
55,  248 


Van  Buren  v.  Chenango  Co.  Mutual 

Ins.  Co.  105 

"         v.  Cockburn  29 

«         v.         "  36,133,199 

Van  Buskirk  v.  Roy  32 

Vandenburgh  v.  Biggs  37,  246 

"  v.  Van  Valkenburgh    86,131 

Vanderpool  v.  Kissam  75 

v.  Tarbox  130,  196 

v.  Van  Valkenburgh       31,105 

157, 199 

Vanderwerker  v.  Vanderwerker      117, 133, 

312 
Vandewater  v.  Kelsey  94,  284,  290 

Van  Gieson  v.  Van  Gieson  168, 173 

Van  Heusen  v.  Kirkpatrick  271 

Van  Home  v.  Everson  30 

"         v.  Montgomery        55,  112, 183, 

238 

Van  Keuren  v.  Parmelee  36 

Van  Kirk  v.  Wilds  23,  44,  70,  206 

Van  Namee  v.  Bank  of  Troy  130 

v.  Peoble  146 

Van  Neste  v.  Conover  74, 131 

Van  Orman  v.  Phelps  236,  243 

Van  Pelt  v.  Boyer  138,  144, 199,  238 

v.    "  159,  294 

Van  Rensselaer  v.  Chadwick         5,  44, 137 

"  v.  Dunbar  45 

"  v.  Emery  90,  105, 264 

"  v.  Kidd  295,  302 

Van  Schaick  v.  Winne      225,  300,  303,  305 

Van  Sickle  v.  Van  Sickle  29,  39,  232 

Van  Sickler  v.  Graham  295,  302 

Van  Slyke  v.  Shelden  313 

Van  Steenburgh  v.  Hoffman  213,  287 

Van  Valkenburgh  v.  Allendorph  211 

"  v.  Van  Schaick  300 

Van  Vleck  v.  Bcrrougha  295 

Van  Wicklen  v.  Paulson  194 

Van  Wyck  v.  Alligor  90 

v.        "  305 

"  v.        "  305 

v.  Bradly  263 

Vassar  v.  Camp  132 

Vermont  Central  R.R.  Co.  v.  Northern 

R.R.  Co.  142 

Vernam  v.  Holbrook  45,  64,  70 

Vernovy  v.  Tauney  69 

Visscher  v.  Hudson  River  R.  R.  Co.        69, 

286,  310 
Voorhies  v.  Boofield  41, -Is,  L37 

Voss  v.  Fiolden  181 

\  reeland  r.  Hughea  72,  255,  295 

Vrooman  v.  .tones  171 ,  316 

"       v.  Shepherd  34 


W. 

Waddell  v.  ESmendorf 

Wadsworth  v.  Sherman 
v.  Thomas 


33,  199 

30,  44,  199 
33,  36 


INDEX  TO  CASES  CITED. 


XXVll 


Wagener  v.  Reiley 
Wager  v.  Ide 
Waggoner  v.  Brown 
Wakeman  v.  Price 
Waldorph  v.  Bortle 


Section 

290 

168,  206 

112,  154,  248 

290 

30,  133,  171 


Walker  v.  Bank  of  the  State  of  New 

York  130 

"       v.  Burnham  295 

"      v.  Hubbard  41 

v.  Johnson      141,  164,  182,  202,  248 


Wall  v.  Howard  Ins.  Co. 
Wallace  v.  Bond 
"       v.  Eaton 
Walrath  v.  Killer 
Walrod  v.  Ball 

"       v.  Bennett 
Wanzer  v.  De  Baum 
Ward  v.  Davis 

v.  Dewey 

v.  Stringham 

v.  Syme 

v.      " 


199 
177 

27,31,147 
138 
219 
155,156,168 
74 
177 
90 
41 
79,  277 
294 
294 
29 
41,238 
173 
23,  194 
109, 121 
55, 115, 169.  203, 
249 
Washington  Bank  of  Westerly  v. 

Palmer  19,  194 

Waterbury  v.  Graham  157,  199 

"         v.  Westervelt  300 

"         v.  "  5, 256 

Waterford  and  Whitehall  Turnpike 


v.  Whitney 
Warner  v.  Kenny 

"      v.  Wigers 
Warren  v.  Helmer 

"      v.  Struller 
Washburn  v.  Herrick 


v.  People 
Waterman  v.  Whitney 
Waters  v.  Whitamore 
Waterville  Man.  Co.  v.  Brown 
"  "        v.  Bryan 

Watkins  v.  Stevens 
Watrous  v.  Lathrop 
Watson  v.  Brigham 

"      v.  Cabot  Bank 

"      v.  Hazzard 

"      v.  Husson 

"      v.  Scriven 
Watts  v.  Aikin 
Weare  v.  Slocum 
Webb  v.  Clark 

"     v.  Mott 
Weber  v.  Defor 
Weed  v.  Foster 

"     v.  Raney 
Weeks  v.  Lowerre 
Weisser  v.  Denison 
Welch  v.  Cook 

"     v.     " 
Welles  v.  Webster 
Wells  v.  Danforth 

"     v.        " 
Wendell  v.  Mitchell, 
West  v.  Brewster 

"    v.  Fraser 
Westcott  v.  Piatt 
Western  Bank 

Columbus 
Westervelt  ads.  Nelson 
Westgate  v.  Handlin 


205 

291 

23 

197,  199 

128,  199 

36 

252,  264 

25,133,238,  312 

19,  44,  45,  48, 102 

126 

10, 119, 130,  167,  277, 

289,  291 

213,  218 

286 

7,  54,  41, 117 

112,  113 

41,  48,  77,  137 

90, 127 

129 

218 

180,  225 

225 

221,  232,  287,  309 

69,  236,  276,  309 

151 

250,  276,  289,  291 

275 

22,  154 

41,  122, 128,  140 

105,  264 

274,  275 

City  Bank  of 

97,  127 
295 
56,313 
Westlake  v.  St.  Lawrence  Mutual 

Ins.  Co.  197,  199 

Weston  v.  Hatch  194 

Wever  v.  Marvin  286 


Section 

Whale  v.  Whale  175 

Whalon  v.  Supervisors  of  Albany  175 

Wheeler  v.  Cropsey  252 

"        v.  Rochester  and  Syracuse 

R.R.  Co.  90 

"        v.  Smith  101,  256 

"        v.  Westgate  295, 297 

Whipple  v.  Williams        3,  56,  66,  176,  182, 

231,  301,  303,  304,  305 

White,  in  re  284 

"      v.  Ambler  199 

"      v.  Bennett  161 

"      v.  Coatsworth  157 

"      v.  Cummings  112,  113 

"      v.  Featherstonhaugh  102,  13S, 

238,  249 

"      v.  Hudson  River  Fire  Ins.  Co.     130 

"      v.  Kidd  119,121,146,163 

"      v.  Low  111,  126,  13S,  148, 149 

"      v.  M'AUister  74 

"      v.  Parker  51 

"      v.  White  29 

Whitehead  v.  Pecare    66,  232,  234, 248,  249 

Whitlock  v.  Roth  75 

Whitney  v.  Bayard  272 

"        v.  Kenyon  241, 248 

"       v.  Knows  10, 289 

"       v.  Waterman  121,284 

Wiggins,  in  re  313 

"        v.  Arkenburgh  300 

"        v.  Cans  109,122,140,159 

v.     "  212 

"        v.  Tallmadge      22, 117, 154,  273, 

289   291 

Wilcock  v.  Curtis  64, 144',  238 

Wilcox  v.  Bennett  184, 197,  226 

"      v.  Curtis  231 

Wilder  v.  Baumstauck  40,  241 

"      v.  Seelye  141 

Wilkin  v.  Pearce  182, 291 

Willard  v.  Andrews  302 

Willets  v.  Phenix  Bank  130 

Williams  v.  Cunningham  271 

v.  Eldridge  181 

"        v.  Fitch  275,286,300 

"        v.  Hayes  109,  121 

"        v.  Miller  41 

"        v.  Price  23 

v.  Sage  176,  182,  212 

"        v.  Sholto  113 

v.  Upton  166, 169 

"        v.Wilkinson  115 

Williamson  v.  Moore  65,  67,  171 

Willis  v.  Taggard  159 

"      v.  Underhill     29,117,170,193,194, 

196 

"      v.  Welch  218 

Wilmerding  v.  Moon  77 

Wilson  v.  Allen  218 

"      v.     "  300,301 

"      v.     "  220,274,276,277 

"      v.Andrews  259,261,262,264 

"      v.  Baptist  Education  Society 

of  New  York  286 

"      v.  Onderdonk  274,  275,  285,  316 

"      v.  Robinson  74.  129,  167 

"      v.  Smith  35, 233,  252 

"     v.Wheeler  85,87,176,306 

Wing  v.  Huntington  289,  290 

"     v.  Ketcham  171 

Winne  v.  Sickles  161 

Winslow  v.  Kierski  23 

Wisnerv.  Teed  166, 167, 169 

Witbeck  v.  Waine  220,  223,  278, 291 

Wolfe  v.  Van  Nostrand  302 


xxvm 


Wood  v.  Anthony 

"      v.  Gilchrist 

"      v.  Harrison 

"      v.  Lambert 

"      v.  Staniels 
Wooden  v.  Waffle     109, 

Woodruff  v.  Bush 
"        v.  Moore 
Woods  v.  Morrell 
Woodward  v.  Grier 
Woodworth  v.  Bellows 

Woollen  Manufacturing 

end 
Wordsworth  v.  Lyon 
Wright  v  Douglass 


INDEX  TO  CASES  CITED. 


Section 

109,  111,  121,  122 

129, 196 

195 

230 

156,  207 

121,  158, 159, 195, 

207 

244 

36 

121 

302 

103,154,163,170, 

182,  235,  239 

Co.  v.  Towns- 

275 

90 

10, 11 ,  199, 252 

101 


Wright  v.  Douglass 
"       v.  Smith 
"       v.  Storms 
Wurts  v.  Jenkins 
Wyant  v-  Reeves 


Yale  v.  Gwinits 
Yates  v.  Bigelow 
"      v.  Blodgett 
Yorks  v.  Peck 
Young  v.  Colby 
"     v.  Hunter 
"     v.  Moore 
"     v.  Reiner 


Section 

290 

28,  250,  294 

117 

30,  157 

41,  238 


211,213 

140, 156 

41,  74,  135 

295,  302 

277 

157,  161 

23 

23 


INTKODUCTION. 


Encouraged  by  his  former  success,  the  author  of  "  Practico 
and  Pleading  under  the  Code"  has  felt  it  due  to  himself  and 
to  the  public  to  issue  a  second  and  revised  edition,  in  lieu  of 
the  first,  which  for  some  time  has  been  exhausted. 

Though  varied  in  details,  the  general  plan  of  the  work 
remains  identical.  It  may,  therefore,  be  convenient  to  state 
that  plan  in  the  words  of  the  original  Introduction,  and  to 
mention  afterwards  the  amendments  that  have  been  made. 

After  noticing  the  various  circumstances  which  induced 
such  an  undertaking  on  the  part  of  the  author,  the  original 
Introduction  proceeds  as  follows  : 

"  To  supply  the  void  thus  existing,  is  the  attempt  proposed 
in  the  compilation  of  the  present  work,  in  which  the  objects  of 
a  Commentary  and  of  a  Book  of  Practice  are  sought  to  be  com- 
bined, in  a  practical  spirit  and  with  practical  views  throughout. 
All  mere  discussion  has  accordingly  been  studiously  avoided 
from  first  to  last,  so  far  as  was  possible,  consistent  with  a  due 
investigation  into  the  various  difficulties  which  have  from  time 
to  time  been  raised  as  to  the  interpretation  of  the  measure. 
That  so  little  of  insoluble  difficulty  should  have  arisen,  forms 
the  best  eulogium  upon  the  Code  itself — effecting,  as  it  un- 
questionably has  effected,  a  revolution  in  the  previous  system, 
which,  for  extent  and  boldness,  stands  unparalleled  in  the  annals 
of  legal  reform. 

"The  scope  of  the  work  may  be  thus  briefly  stated:  A 
sketch  of  the  different  tribunals  of  Civil  Jurisdiction  is  first 
given.     The  general  prerequisites  to  the  assertion  of  remedies 


XXX 


INTRODUCTION. 


in  those  tribunals,  is  next  considered.  The  progress  of  an 
ordinary  suit  in  the  higher  courts  is  then  taken  up,  and  prac- 
tical directions  given  for  its  conduct  and  management  by  both 
parties,  from  its  first  outset  to  its  final  result.  This  important 
subject  having  been  fully  considered  in  all  its  branches,  the 
nature  and  characteristics  of  special  proceedings  are  shortly 
adverted  to,  and  the  work  concludes  with  a  brief  notice  of  the 
retrospective  effect  of  the  Code,  and  an  Appendix  of  Forms. 

"  In  treating  of  these  subjects,  the  enouncement  of  any  pro- 
position unsupported  by  positive  authority,  has  been  carefully 
avoided  ;  and,  where  the  decisions  on  any  given  point  have 
been  conflicting,  the  author  has  stated  those  on  both  sides,  as 
impartially  as  lay  in  his  power,  whilst  drawing  his  own  con- 
clusion. He  has,  too,  adopted  the  principle  of  confining  him- 
self to  the  citation  of  decisions  pronounced  under  the  actual 
operation  of  the  Code,  to  the  exclusion  of  cases  decided  before 
its  passage,  or  by  the  English  tribunals.  Though  concurrent 
on  many  points,  and  consistent  on  more  ;  on  others,  and  those 
of  the  most  important  nature,  the  old  and  new  systems  are  at 
absolute  and  irreconcilable  variance  with  each  other ;  and  a 
fortiori,  is  this  the  fact  with  respect  to  English  authorities. 
Their  applicability  is  at  the  best  illustrative  ;  it  cannot  be  held 
to  be  direct  under  any  circumstances. 

"  The  general  tenor  of  the  work  presupposes  likewise  an 
acquaintance  on  the  part  of  the  student  with  the  elementary 
and  other  works  in  relation  to  the  practice  under  the  old  sys- 
tem. For  some  time  to  come,  this  will  remain  a  matter,  not 
of  choice,  but  of  necessity,  though  that  necessity  will  lessen 
in  degree  with  every  recurring  year.  All  details  of  proceed- 
ings governed  exclusively  by  the  old  system  will  therefore  be 
rigidly  excluded,  whilst  indicating  the  sources  whence  those 
details  may  !><•  gathered  ;  and  the  present  work  will  be  strictly 
and  professedly  confined  to  the  new,  as  contradistinguished 
from  tlm  i. M  practice. 

"The  Code  and  Rules  will  necessarily  form  the  subject  of 

constant  citation,  the  more  important  provisions  of  the  former 

being  inserted  in  the  text.     In  quoting  from  the  Revised  Sta- 

tuteSj  the  references  are  made  to  the  marginal  paging. 

':ln  preparing  the  appendix  of  Forms,  succinctness  has  been 


INTRODUCTION.  XXXi 

studied,  and  no  attempt  made  to  give  precedents  of  mere  state- 
ments of  fact,  apart  from  those  clauses  which  are  of  general 
and  not  of  particular  application." 

To  the  plan  as  thus  laid  down  in  the  outset,  the  author  has 
still  rigidly  adhered.     The  great  doubt  which  has  arisen  in  his 
mind  has  been  as  to  the  expediency  of   incorporating  in  his 
work  the  remnants  of  the  old  practice,  in  relation  to  special 
proceedings  and  other  matters  unaffected  by  the  Code.     After 
much  deliberation,  he  has  decided  against  this  course.     The 
standard  works  on  that  practice  still  form,  and  must  for  some 
time  continue  to  form,  an  indispensable  requisite  to  the  library 
of  a  practising  lawyer.     In  those  works  the  settled  course  of 
proceeding  in  these  cases  will  be  found  accurately  defined  ; 
whilst  the  recent  decisions,  as  far  as  matters  of  mere  practice 
are  concerned,  are  comparatively  few  and  unimportant.    Were 
there  any  prospect  that  the  former  practice  in  these  matters 
would  be  permanently  established  on  any  thing  approaching 
to  a  fixed  basis,  a  refusion  of  the  present  information  on  the 
subject  would  be  a  highly  desirable  adjunct  to  a  work  of  this 
nature.     But  such  is  not  the  case  ;    and,  however  indisposed, 
and  justly  indisposed,  the  Legislature  may  be  to  interfere  fur- 
ther with  the  workings  of  the  Code  itself,  until  time  has  been 
given  to  mature  and  test  the  system  as  it  now  stands,  the  same 
argument  does  not  apply  to  the  balance  of  the  original  report 
of  the  Commissioners.     It  is   not  only  highly  probable,  but  it 
seems  even  essential  to  the  proper  working  of  the  system  of 
legal  reform  already  commenced  upon,  that  the   Legislature 
should  make  some  disposition  of  the  subject  as  regards  the 
remaining  branches  of  procedure.     Whenever  this  anticipated 
disposition  takes  place,  the  details  of  the  old  practice  will  at 
once  become  wholly,  as  they  are  now  partially,  obsolete  ;  and 
in  the  meantime  they  can  best  be  gathered  from  the  existent 
standard  works  upon  the  subject.     To  compose  a  supplement- 
ary treatise   would  therefore   be  an   ephemeral  labor  ;    and, 
when  composed,  that  treatise  would,  in  all  probability,  become 
speedily  an  excrescence  on  the  face  of  a  work  devoted  to  the 
consideration  of  what  has  been  accomplished,  not  what  is  pro- 
jected.    Such  a  treatise  would  be  either  wholly  conjectural,  on 


xxxii  INTRODUCTION. 

the  one  hand,  or  a  mere  recasting  of  already  digested  informa- 
tion, on  the  other. 

For  these  reasons,  then,  the  author  has  determined  to  adhere 
to  his  plan  as  first  laid  down.  In  matters  of  mere  arrange- 
ment he  has,  however,  made  considerable  alterations  in  the 
general  plan  of  the  work,  and  which  he  trusts  will  be  found 
improvements.  The  references  to  decided  cases  have  been 
brought  down  to  the  latest  period,  and  the  conclusions  through- 
out subjected  to  a  careful  revision  in  connection  with  the  new 
light  thus  thrown  upon  them.  The  book  has  been  in  fact  in  a 
great  measure  re-written,  though  with  the  incorporation  in  it 
of  the  old  material.  With  a  view  to  the  greater  convenience 
of  reference,  the  text  has  been  arranged  throughout  in  sections 
continuously  numbered,  each  section  containing  a  specific  sub- 
ject, and  those  sections  again  subdivided  into  dependent  titles, 
according  to  the  different  minor  subjects  involved  in  each;  and, 
in  accordance  with  another  suggestion  from  parties  of  high 
eminence  in  the  profession,  the  text  of  the  Code  itself  has  been 
appended  in  a  separate  and  integral  shape.  Additions  have 
also  been  made  to  the  appendix  of  Forms,  with  a  view  to  their 
greater  completeness  and  utility.  These  various  changes  have 
of  necessity  increased  the  bulk  of  the  work,  and  necessitated 
its  division  into  two  volumes. 

The  authorities  on  which  the  different  positions  advanced  in 
the  text  are  grounded,  and  which  embrace  all  cases  decided  on 
points  of  practice,  since  the  original  passage  of  the  Code,  are 
as  follows  : 

Comstock's  Reports,  4  volumes,  cited  as  "  Comst." 

Seidell's  Reports,  1st  and  part  of  2d  volume,  cited  as 
"Seld." 

Notes  of  Decisions  of  Court  of  Appeals,  issued  in  anticipa- 
tion of  the  regular  Reports,  each  case  being  noticed  by  the 
date  of  the  decision. 

Barbour's  Supreme  Court  Reports,  vols.  2  to  15  inclusive, 
cited  as  "  l>;irb." 

Sandford's  Superior  Court  Reports,  5  volumes  ;  cited  as 
"Sandf." 

liner's  Superior  Court  Reports,  1  volume  ;   citod  as  "  Duer." 


INTRODUCTION.  xxxiii 

Howard's  Practice  Reports,  Vols.  3  to  8  inclusive,  and  part 
of  Vol.  9;   cited  as  "How." 

The  Legal  Observer,  Vols.  5  to  11  inclusive,  and  part  of  Vol , 
12;    cited  as"L.  0." 

The  Code  Reporter,  3  volumes  ;  cited  as  "  C.  R." 

Do.  do.  New   Series,   1  volume  ;    cited   as  "  1 

C.  R.  (N.  S.)" 

N.  B. — The  balance  of  the  2d  and  part  of  the  3d  volume  of 
Selden,  a  further  part  of  volume  9  of  Howard,  and  additional 
numbers  of  the  12th  volume  of  the  Legal  Observer,  will  doubt- 
less be  received  while  the  work  is  going  through  the  press,  and 
will  be  included  in  the  text  as  far  as  possible. 

With  these  preliminary  remarks,  the  author  submits  the 
result  of  his  renewed  labors,  in  the  humble  hope  that  they  may 
be  as  indulgently  appreciated,  and  as  cordially  supported  by 
the  profession  and  the  public,  as  was  the  case  with  respect  to 
the  original  publication. 


VOL.  I. — l 


SUPPLEMENTARY  NOTICE.  XXXvii 

Rule  41,  as  to  marking  folios,  is  now  made  expressly  appli- 
cable to  affidavits ;  note  at  vol.  I.,  p.  162. 

Rule  20,  inserted  on  last  revision,  imposes  additional  restric- 
tions on  applications  for  time  to  answer,  by  requiring  merits  to 
be  sworn  to  on  those  applications.  Note  change,  at  vol.  I.,  pp. 
178,  449.  On  the  same  revision,  Rules  20  and  21,  of  1852, 
were  stricken  out  altogether,  the  general  powers  of  the  judges 
being  sufficient  for  the  purposes  for  which  those  Rules  were 
made,  without  the  necessity  of  any  special  provision  on  the 
subject.  Note,  under  the  heads  of  Motion  to  dismiss,  and  Post- 
ponement of  Trial,  at  vol.  I.,  pp.  569,  609,  672. 

As  to  the  waiver  of  defects  in  a  summons  or  complaint,  by 
a  general  appearance  on  the  part  of  the  defendant ;  note,  at  vol. 
I.,  p.  427  ;  Beck  v.  Stephani,  9  How.  193  ;  Van  Namee  v.  Peohle, 
9  How.  198. 

Corwin  v.  Freeland,  6  How.  241,  has  been  reversed  by  the 
Court  of  Appeals,  2  Seld.  560.  Note,  vol.  I.,  p.  387 ;  vol.  II. 
pp.  105,  106.  This  case  seems  to  settle  the  doctrine  that,  if  a 
provisional  order  for  arrest  be  obtained  by  the  plaintiff,  and  not 
set  aside  by  the  defendant,  the  latter  will  afterwards  be  arrest- 
able on  execution,  whatever  the  nature  of  the  action. 

In  relation  to  the  judge's  discretion  with  reference  to  the 
security  on  an  arrest,  and  the  evidence  on  which  an  order  for 
arrest  should  be  granted ;  note  Gourter  v.  McNamara,  9  How. 
255,  at  vol.  L,  pp.  217-220.  Refer  to  same  case,  as  regards 
security  on  an  injunction,  at  p.  263. 

As  to  refusal  of  an  injunction,  when  plaintiff's  right  to  it  is 
not  clear ;  note  Sebring  v.  Lent,  9  How.  346,  at  vol.  L,  p.  253. 

As  to  the  law  of  domicil,  note  Lee  v.  Stanley,  9  How.  272,  at 
vol.  I.,  p.  279. 

In  relation  to  actions  by  receivers,  refer  to  Wheeler  v.  Wheedon, 
9  How.  293  ;  St.  John  v.  Denison,  9  How.  343  ;  Seymour  v.  Wil- 
son, 16  Barb.  294 ;  and  Haynerv.  Fowler,  16  Barb.  300  ;  at  vol. 
I,  p.  303  ;  vol.  II.,  p.  142. 

As  to  the  course  of  adverse  party,  on  a  defective  verification, 
note  Strauss  v.  Parker,  9  How.  342,  at  vol.  I.,  p.  329. 

Refer  to  same  case,  as  regards  omission  to  number  causes  of 
action,  at  vol.  I.,  p.  328 ;  and  also  to  Van  Namee  v.  Peoble,  9 
How.  198,  and,  per  contra,  to  Robinson  v.  Judd,  9  How.  378. 

Note  Strauss  v.  Parker  also,  at  vol.  I.,  p.  334,  as  to  return  of 
defective  pleading. 


XXXviii  SUPPLEMENTARY  NOTICE. 

As  to  an  amendment  on  terms,  refer  to  Vanderbilt  v.  Accessory 
Transit  Company,  9  How.  352,  at  vol.  I.,  p.  344. 

As  to  the  making  a  pleading  more  definite  and  certain,  note 
same  case,  and  also  Welles  v.  Webster,  9  How.  251,  at  vol.  I., 
p.  363. 

As  regards  the  fusion  of  law  and  equity  effected  by  the  Code, 
note  Miller  v.  Losee,  9  How.  356,  at  vol.  I.,  p.  306. 

As  regards  an  omission  to  state  the  title  of  the  cause  in  the 
complaint,  refer  to  Van  Namee  v.  Peoble,  9  How.  198,  at  vol. 
I.,  pp.  119,  366. 

With  reference  to  the  objection  on  the  ground  of  separate 
causes  of  action  not  being  separately  stated,  see  Van  Namee  v. 
Peoble,  9  How.  198  ;  Wood  v.  Anthony,  9  How.  78  ;  Gooding  v. 
McAllister,  9  How.  123  ;  Strauss  v.  Parker,  9  How.  342 ;  and 
Robinson  v.  Judd,  9  How.  378.     Note,  at  vol.  I.,  pp.  369,  463. 

As  to  misjoinder  of  causes  of  action  in  general,  see  Welles  v. 
Webster,  9  How.  251 ;  Colwell  v.  The  New  York  and  Erie  Railroad 
Company,  9  How.  311,  and  Spier  v.  Robinson,  9  How.  325. 
Note  at  vol.  I.,  pp.  370,  461. 

Make  further  note  of  Welles  v.  Webster,  at  vol.  I.,  p.  378, 
with  reference  to  profert  by  an  executor. 

In  relation  to  protest  of  a  note,  see  Van  Vechten  v.  Pruyn, 
9  How.  222,  and  Hunt  v.  Maybee,  3  Seld.  266.  Note,  at  vol.  I., 
p.  395. 

As  to  proceedings  in  the  nature  of  a  creditor's  bill,  refer  to 
Wheeler  v.  Wheedon,  9  How.  293,  at  vol.  L,  p.  405. 

As  to  Injunction  ;  note,  at  vol.  I.,  p.  407,  Sabring  v.  Lant, 
U  How.  346. 

As  to  an  action  on  a  policy  of  insurance,  not  importing  on  its 
fece  any  interest  in  the  holder,  refer  to  Williams  v.  Insurance 
Company  of  North  America,  9  How.  365,  at  vol.  I.,  p.  403. 

As  to  tli''  effect  of  the  giving  of  a  promissory  note,  note  at 
vol.  I.,  i».  398,  Lah  v.  Tysen,  2  Seld.  461 ;  note  also,  at  p.  399, 
Gilbert  v.  Danfortht  2  Seld.  585,  as  to  a  note  payable  in  specific 
articles,  instead  of  cash  ;  and  likewise  Austin  v.  Barns,  16  Barb. 
648,  as  to  the  mode  of  suing  upon  an  instrument  containing 
other  stipulations,  in  addition  to  a  promise  to  pay  money. 

A  to  an  action  on  a  cheque,  note  Chapman  v.  White,  2 
Seld.  412,  at  vol.  I.,  p.  tOl.  Refer,  also,  at  p.  398,  to  Black  v. 
Caffe%  '•>  Seld.  281,  as  f"  an  action  on  a  bill  of  exchange. 

As  to  a  suit  against  an  insolvent  corporation,  note,  at  vol.1., 


SUPPLEMENTARY  NOTICE 


or 


RECENT  DECISIONS,  ANDCHANGESIN  RULES. 


INTRODUCTION. 

Since  writing  the  foregoing  Introduction,  the  additional 
reports  there  alluded  to  have  appeared,  and  the  cases  cited  in 
those  reports  have  been  noticed,  in  all  portions  of  the  text  not 
actually  gone  through  the  press  at  the  time  of  their  appearance. 
The  changes  in  the  Eules  on  the  revision  in  August  last,  are 
similarly  noticed  in  the  larger  portion  of  the  second  volume, 
and  the  text  is  given  in  full  in  the  Appendix;  the  first  was 
complete  before  their  revision.  The  16th  volume  of  Barbour's 
Eeports  also  appeared  on  the  very  morning  on  which  these  notes 
were  called  for  by  the  printer.  The  author  has,  however, 
delayed  the  press,  in  order  to  insert,  in  the  following  pages,  a 
reference  to  the  cases  reported  in  that  volume.  The  constant 
remodelling  of  completed  portions  of  the  work,  involved  in  the 
fulfilment  of  his  pledge  to  that  effect,  has  not  been  the  least  of 
that  author's  labors;  but  he  has  steadily  kept  in  view  the 
object  of  making  his  work,  as  far  as  practicable,  a  synopsis  of 
all  reported  cases  and  settled  points  of  practice,  down  to  its 
actual  publication. 

In  order  to  the  complete  attainment  of  this  object,  it  remains 
to  notice  the  different  decisions,  and  the  different  alterations  in 
the  Eules,  which  it  was  impossible  to  include  in  the  actual 
text.  That  notice  will  be  found  in  the  following  portions  of 
this  chapter ;  and  a  short  notice,  in  pencil  or  otherwise,  in  the 
margin  of  the  different  pages  below  referred  to,  of  the  particu- 


xxxvi  SUPPLEMENTARY  NOTICE. 

lars  below  given,  will  enable  the  reader,  by  a  simple  and  easy 
process,  to  direct  his  attention  to  the  subjects  in  question,  and 
to  obtain  a  sufficient  reference  to  them  for  all  practical  pur- 
poses.   

NOTICE. 

Note  Lynch  v.  Livingston,  at  vol.  I.,  p.  3,  as  affirmed  by 
the  Court  of  Appeals.     2  Seld.  422. 

In  relation  to  the  liability  of  the  sheriff  for  a  false  return, 
note  Bacon  v.  Cropsey,  2  Seld.  195,  at  vol.  I.,  p.  6. 

Note  further,  revision  of  Rules,  at  vol.  I.,  p.  25.  For  text  of 
Rules,  as  so  revised,  see  vol.  II.,  p.  643.  It  must  be  borne  in 
mind  that,  from  No.  67  downwards,  the  numbers  of  the  Eules 
of  1852  were  changed  in  that  revision :  deduct  one,  therefore, 
from  the  references  in  the  first  volume,  in  each  Rule  above  that 
number ;  Rule  68,  of  1852,  becoming,  on  that  revision,  Rule  67, 
of  1851,  and  so  on,  down  to  the  concluding  Rule,  which  now 
numbers  89,  instead  of  90. 

As  to  suits  against  stockholders  of  an  insolvent  manufactur- 
ing company,  see  Bogardus  v.  Rosendale  Manufacturing  Com- 
pany, 3  Seld.  147.  Note  at  vol.  I.,  p.  72,  and  likewise  at  p.  79, 
in  relation  to  unknown  defendants. 

As  to  the  rights  of  the  wife,  and  husband  and  wife  respect- 
ively, and  their  joinder  as  parties,  see  Rusher  v.  Morris,  9  How. 
266  ;  Sleight  v.  Read,  9  How.  278.  (affirmed  by  general  term  of 
first  district,  but  affirmance  as  yet  unreported;)  Whittemore  v. 
Sloat,  9  How.  317 ;  Noyes  v.  Blakeman,  2  Seld.  567 ;  Ellicott 
v.  Mosler,  3  Seld.  201,  (affirming  11  Barb.  574.)  Note,  at  vol. 
I.,  pp.  65  to  68.  Note  also  at  p.  67,  affirmance  of  Lewis  v.  Smith, 
in  Court  of  Appeals,  as  reported  12  L.  O.  193. 

As  to  the  remedy  of  interpleader,  note  Beck  v.  Stephani,  9 
How.  193,  at  vol.  I.,  p.  82. 

Rule  53  is  now  amended,  by  removing  the  restrictions  for- 
merly imposed,  as  regarded  the  appointment  of  a  guardian  ad 
lit/  in,  bo  far  as  respects  the  class  of  common  law  actions.  Refer 
to  alteration,  at  vol.  I.,  p.  148.  The  Rule,  as  it  now  stands,  also 
provides  as  to  the  course  which  maybe  pursued,  on  appointing 
a  next  friend  for  a  married  woman.  Note  this  alteration  at 
vol.  i.,  ] i.  65. 

As  to  service  by  mail,  as  applicable  to  notice  of  protest,  refer 
to  Van  Vc<ht<:n  v.  Pruyn,  9  How.  222,  at  vol.  I.,  p.  158. 


SUPPLEMENTARY  NOTICE.  Xxxix 

p.  379,  Bogardus  v.  The  Bosendale  Manufacturing  Company, 
3  Seld.  147. 

Kefer,  at  vol.  L,  p.  391,  to  Bain  v.  Wycoff,  3  Seld.  191,  as 
regards  an  action  for  seduction. 

As  to  ejectment  for  dower,  note,  at  Yol.  I.,  pp.  411,  414, 
affirmance  of  Ellicott  v.  Hosier,  by  Court  of  Appeals,  3  Seld.  201. 

As  to  separate  demand  of  copy  complaint,  for  different  de- 
fendants, and  as  to  right  of  defendant's  attorney  to  move  for  a 
dismissal,  on  the  expiration  of  twenty  days  from  the  first  of 
those  demands,  refer  to  Buce  v.  Trempert,  9  How.  212,  at  vol. 
I.,  p.  429. 

As  to  an  agreement  in  restraint  of  trade,  note,  vol.  I.,  p. 
379,  Eolbrooh  v.  Waters,  9  How.  335. 

As  to  the  admission  of  facts,  by  demurrer,  when  taken,  note, 
at  vol.  I.,  p.  457,  Spier  v.  Robinson,  9  How.  325. 

In  support  of  the  doctrine  that  a  denial  and  a  justification 
may  be  admissible  in  the  same  pleading,  in  slander,  note,  at 
vol.  I.,  p.  496,  Hollenbeck  v.  Glow,  9  How.  289 ;  but  see  adverse 
decisions,  there  cited.  Note  same  case  in  relation  to  inconsistent 
defences,  at  p.  511. 

Note,  at  vol.  I.,  p.  507,  Gowles  v.  Cowles,  9  How.  361,  to  the 
effect  that  a  defendant,  on  showing  that  one  of  several  plaintiffs 
is  the  sole  party  in  interest,  may  avail  himself  of  a  set-off  against 
that  plaintiff. 

As  to  the  doctrine  of  res  judicata,  note  Kelsey  v.  Bradbury, 
12  L.  0.  222,  at  vol.  I.,  pp.  488,  674. 

Note,  at  vol.  I.,  pp.  488,  535,  Russell  v.  Harding,  12  L.  0. 
216,  holding  that  the  insolvent  laws  of  another  State  are  not 
pleadable  as  matter  of  defence  in  this. 

As  to  the  objection  of  the  pendency  of  another  action,  and  the 
mode  of  taking  that  objection,  refer  to  Compton  v.  Green,  9 
How.  228,  at  vol.  I,  pp.  461,  474. 

As  to  the  defence  of  usury,  and  its  inadmissibility  in  fore- 
closure, note,  at  vol.  I.,  pp.  493,  501,  Sands  v.  Church,  2 
Seld.  347. 

Note,  at  vol.  I.,  p.  554,  Beck  v.  Stephani,  9  How.  193,  and 
Spier  v.  Robinson,  9  How.  325,  as  to  supplemental  complaint, 
and  the  general  practice  on  that  subject.  Note  latter  case  like- 
wise at  vol.  II.,  p.  342,  with  reference  to  a  supplemental  plead- 
ing, in  a  suit,  abated  before  the  1st  July,  1848,  and  as  to  proceed- 
ings in  such  a  case  being  governed  by  the  old,  and  not  by  the 
new  practice. 


xl  SUPPLEMENTARY  NOTICE. 

In  Miller  v.  Losee,  9  How.  356,  it  is  laid  down,  that  it  is  com- 
petent for  the  plaintiff  to  reply  to  an  equitable  set-off  pleaded 
by  the  defendant,  and  that  the  former  may  allege  in  that  reply, 
any  new  matter,  which  would  have  constituted  a  defence  to  that 
set-off  in  a  separate  action.     Note  at  vol.  L,  p.  528. 

Note,  at  vol.  I.,  pp.  659,  699,  New  Eule  No.  21,  expressly 
providing  that  issues  of  fact,  to  be  tried  by  the  court,  may  be 
tried  at  the  circuit  or  special  term. 

In  relation  to  the  law  of  evidence,  note  as  below ;  as  to  refer- 
ring to  a  written  memorandum,  and  also  as  to  impeaching  or 
contradicting  a  witness,  Huff  v.  Bennett,  2  Seld.  337  ;  in  rela- 
tion to  the  latter  subject,  Newton  v.  Harris,  2  Seld.  345 ;  as  to 
evidence  of  character,  Dain  v.  Wycoff,  3  Seld.  191 ;  at  vol.  I., 
p.  676.  Note,  also,  at  p.  675,  Hunt  v.  Maybee,  3  Seld.  266, 
with  reference  to  the  protest  of  a  note. 

Note  at  vol.  I.,  pp.  691,  730,  reversal,  by  the  Court  of  Ap- 
peals, of  Bulheley  v.  Keteltas.     See  2  Seld.  384. 

As  to  the  waiver  of  objections  not  taken  at  the  trial,  note 
Newton  v.  Harris,  2  Seld.  345,  at  vol.  I.,  pp.  668,  692. 

Note  at  vol.  I.,  pp.  693,  701,  Hunt  v.  Maybee,  3  Seld.  266, 
and  Scuids  v.  Church,  2  Seld.  347,  as  to  disregard  of  a  general 
exception. 

A  stipulation  that  a  judge's  decision  on  an  issue  of  fact 
tried  before  him,  shall  be  considered  as  duly  excepted  to,  will 
not  avail  as  an  exception,  Stephens  v.  Reynolds,  2  Seld.  454, 
Note  at  vol.  I.,  pp.  668, 701.  As  to  whether  his  decision  on  such 
a  trial  may  not  be  given  by  parol,  and  not  in  writing,  note 
Sands  v.  Church,  2  Seld.  347,  vol.  I.,  p.  700. 

Note  at  vol.  I.,  p.  733,  and  likewise  at  vol.  II.,  p.  216,  Brown 
v.  Heacock,  9  How.  345,  holding  that  an  appeal  may  be  main- 
tainable on  the  record  alone,  without  a  case  or  .exceptions. 

Note  at  vol.  I.,  pp.  730,  742,  the  amendment  of  Kule  24  : 
providing  expressly,  that  exceptions  are  to  be  settled  in  the 
same  manner  as  cases. 

In  relation  to  appeals  upon  special  proceedings,  and  the  costs 
thereon,  n.-f'rr  to  '/'//<  l'<npl,  y.  Sturkvant,  9  llow.  304,  at  vol.  II., 
pp.  207,  262. 

Note  at  vol.  II.,  ]».  246,  Lotion  v.  Wallace,  9  llow.  344,  as  to 
the  effect  of  a  remittitur. 

As  to  the  reviewal  of  an  intermediate  order,  in  connection 
with  the  judgment  of  an  inferior  court;  note  Cowles  v.  Coivles, 
9  J  low.  861,  at  vol.  J  I.,  p.  212. 


SUPPLEMENTARY  NOTICE.  x\[ 

Note  at  vol.  II.,  p.  214,  affirmance,  by  Court  of  Appeals,  2 
Seld.  443,  of  McMohon  v.  Harrison,  there  cited. 

No  appeal  will  lie  to  the  [Court  of  Appeals,  from  an  inter- 
locutory decree  in  partition.  Refer  to  Beebe  v.  Griffing,  2  Seld. 
465,  at  vol.  II,  p.  236. 

The  copy  judgment  roll  returned  to  the  general  term,  need 
no  longer  be  certified  by  the  clerk,  since  the  last  amendment  of 
Rule  29,  note  change,  at  vol.  II.,  p.  188. 

A  discharge  of  a  judgment  is  not  binding,  if  the  possession 
of  it  be  obtained,  on  conditions  which  are  not  complied  with. 
Crosby  v.  Wood,  2  Seld.  369.     Note  at  vol.  II.,  p.  84. 

As  to  the  disposition  of  the  surplus  in  foreclosure,  and  the 
rights  of  the  wife,  as  against  the  judgment  creditors  of  the  hus- 
band ;  refer  to  /Sleight  v.  Read,  9  How.  278,  at  vol.  II.,  p.  63. 

In  relation  to  the  virtual  enforcement  of  an  order,  for  pay- 
ment of  an  allowance  in  divorce,  by  striking  out  the  defendant's 
answer,  on  default  on  such  payment ;  refer  to  Farnham  v.  Farn- 
ham,  9  How.  231,  at  vol.  II,  p.  111. 

As  regards  the  allowance  of  term  fees ;  note  Sipperly  v.  War- 
ner, 9  How.  332,  at  vol.  II.,  p.  281. 

As  to  an  application  for  an  allowance,  and  to  whom  it  should 
be  made ;  refer  to  The  Saratoga  and  Washington  Railroad  Go. 
v.  McCoy,  9  How.  339,  at  vol.  II,  p.  287. 

As  to  the  liability  of  executors,  and  as  to  the  costs  on  a  refer- 
ence of  a  claim  against  a  testator's  estate,  under  the  Revised 
Statutes ;  note  Avery  v.  Smith,  9  How.  349,  and  Cruikshank  v. 
Cruikshank,  9  How.  350,  at  vol.  II.,  p.  259. 

As  to  double  costs  to  public  officers,  and  in  support  of  the 
doctrine  that  they  are  not  allowable  ;  refer  to  Piatt  v.  Willson, 
9  How.  375,  at  vol.  II.,  p.  256. 

As  to  the  non-appealability  of  an  order  in  relation  to  the  costs 
of  a  motion ;  note  Dennison  v,  Dennison,  9  How.  246,  at  vol.  II., 
pp.  201,  230,  307. 

Note  at  vol.  II.,  p.  329,  Hill  v.  Mohawk  and  Hudson  Railroad 
Company,  3  Seld.  152  ;  The  Albany  Northern  Railroad  Company 
v.  Lansing,  16  Barb.  68  ;  The  Troy  and  Boston  Railroad  Company 
v.  Northern  Turnpike  Company,  16  Barb.  100 ;  Holbrook  v.  Utica 
and  Schenectady  Railroad  Company,  16  Barb.  113  ;  Wilson  v. 
Rochester  and  Syracuse  Railroad  Company,  16  Barb.  167 ;  Albany 
and  West  Stockbridge  Railroad  Co.  v.  Town  of  Canaan,  16  Barb. 
244  ;  The  Niagara  Falls,  &c,  Railroad  Co.  v.  Hotchkiss,  16  Barb. 


xlii  SUPPLEMENTARY  NOTICE. 

270 ;  Canandaigua,  <£c,  Railroad  Co.  v.  Payne,  16  Barb.  273  ;  Par- 
ker v.  Rensselaer  and  Saratoga  Railroad  Co.,  16  Barb.  315  ;  Spade 
v.  Hudson  River  Railroad  Co.,  16  Barb.  383 ;  liegeman  v.  West- 
ern Railroad  Corporation,  16  Barb.  353,  with  reference  to  the 
General  Eailroad  Act.  Note,  also,  at  vol.  II.,  p.  330,  Dexter  v. 
Broat,  16  Barb.  337,  and  Dexter  and  Limerick  Plank-road  Com- 
pany v.  Allen,  16  Barb.  15,  in  relation  to  the  General  Plank- 
road  Act. 

Note  at  vol.  I.,  pp.  55  and  77,  Mead  v.  York,  2  Seld.  449 ; 
confirming  the  doctrine  in  Truscott  v.  King,  there  cited. 

Note  at  vol.  I.,  pp.  15  and  37,  decision  of  Court  of  Appeals, 
in  Nicholson  v.  Leavitt,  2  Seld.  510,  overruling  the  doctrine,  and 
reversing  the  judgment  of  the  Superior  Court,  in  that  case. 

Note  also,  case  of  Bowen  v.  Newell,  alluded  to  vol.  I.,  pp.  15, 
37,  397,  and  401,  as  reported  12  L.  0.  231. 

Note  at  vol.  I.,  p.  408,  McQuade  Y.Warren,  12  L.  O.  250,  in 
relation  to  a  suit  for  specific  performance. 

Note  at  vol.  II.,  p.  339,  Stanton  v.  Kline,  16  Barb.  9,  and 
Bunce  v.  Reed,  16  Barb.  347,  as  regards  foreclosure  by  advertise- 
ment. 

Eefer,  at  vol.  I.,  p.  411,  to  Sheldon  v.  Van  Slyke,  16  Barb. 
26,  as  regards  an  action  for  mesne  profits,  by  way  of  restitution, 
on  the  reversal  of  a  judgment  in  ejectment.  Note  also,  at  same 
page,  McGregor  v.  Comstock,  16  Barb.  427,  in  relation  to  eject- 
ment in  general. 

As  regards  suits  against  parties  jointly  and  severally  liable 
under  a  promissory  note,  and  the  judgment  in  such  cases,  refer 
to  Parker  v.  Jackson,  16  Barb.  33,  at  vol.  I.,  p.  71,  and  vol.  II., 
pp.  25,  26. 

Note  at  vol.  I.,  p.  484,  Baker  v.  Bailey,  16  Barb.  54,  as  to  the 
insufficiency  of  a  mere  denial  modo  et  forma,  as  containing  a 
negative  pregnant. 

As  to  a  complaint  on  a  policy  of  insurance;  note,  at  vol.  I., 
p.  403,  Nellis  v.  Dc  Purest,  16  Barb.  61,  and  The  Utica  Insurance 
Co.  v.  The  American  Mutual  Insurance  Co.,  16  Barb.  171. 

As  to  actions  on  a  guaranty  or  instrument  of  that  nature, 
note  Van  Schaick  v.  Winne,  16  Barb.  89;  and  Cooke  v.  Nathan, 
16  Barb.  342;  at  vol.  I.,  p.  400. 

Note,  at  vol.  1.,  pp.  50,  52,  Delancy  v.Nagle,  16  Barb.  97,  and 
Stcvjart  v.  lirown,  16  Barb.  867;  in  relation  to  proceedings  in 
justices'  courts. 

As  to  the  power  of  the  court  to  grant  a  reference  on  a  motion, 


SUPPLEMENTARY  NOTICE.  xlv 

appeals  themselves,  being  governed  by  the  old  practice,  and  as 
to  the  practice  thereon,  refer  to  Brochway  v.  Jewett,  16  Barb. 
590,  at  vol.  II.,  p.  213. 

Note  also  same  case,  as  regards  only  one  set  of  costs  being 
allowed  to  attorneys  who  are  partners,  at  vol.  II.,  p.  270. 

As  to  the  making  up  of  the  judgment  roll,  and  the  effect  of  an 
omission  to  give  notice  of  taxation  of  costs,  note  Stimson  v. 
Huggins,  16  Barb.  658,  at  vol.  II.,  pp.  6,  302. 

As  to  the  joinder  of  all  necessary  parties  as  plaintiffs,  note 
Loomis  v.  Brown,  16  Barb.  325,  at  vol.  I.,  pp.  69.  376. 

Note,  at  vol.  I.,  p.  349,  Andrews  v.  Bond,  16  Barb.  633,  refus- 
ing to  allow  an  action  sounding  in  tort  to  be  converted  into  an 
action  in  contract,  by  amendment,  after  the  decision  of  an 
appeal. 

Note  same  case,  at  vol.  I.,  p.  307,  with  reference  to  the  dis- 
tinction between  actions  in  tort  and  in  assumpsit,  being  still 
existent  under  the  Code. 

Note  same  case,  also,  at  vol.  I.,  p.  476,  as  to  the  admissibility 
of  general  evidence,  under  a  general  denial  of  the  plaintiff's 
case. 

Note,  at  vol.  II.,  p.  316,  The  People  v.  Flagg,  16  Barb.  503, 
in  relation  to  mandamus ;  at  p.  326,  The  People  v.  Mayer,  16 
Barb.  362,  as  to  habeas  corpus  and  certiorari ;  and,  at  p.  327, 
The  People  v.  Ryder,  16  Barb.  370,  as  to  proceedings  in  the  na- 
ture of  a  quo  warranto. 

In  relation  to  summary  proceedings  to  recover  possession  of 
land,  note,  at  vol.  II.,  p.  337,  Wiggin  v.  Woodruff,  16  Barb. 
474,  and  Burnet  v.  Scribner,  16  Barb.  621. 

As  to  the  complaint  in  an  action  to  abate  a  nuisance,  note  Ells- 
worth v.  Putnam,  16  Barb.  565,  at  vol.  I.,  p.  414,  and  vol.  II., 
p.  331. 

As  to  what  will  or  will  not  constitute  a  sufficient  levy  on 
execution,  note,  at  vol.  II.,  p.  97,  Price  v.  Shipps,  16  Barb.  585. 

As  to  the  law  in  relation  to  notice,  and  presentment  of  a  pro- 
missory note,  refer,  at  vol.  I.,  p.  395,  to  Wooden  v.  Foster,  16 
Barb.  146,  and  Barker  v.  Gassidy,  16  Barb.  177. 

In  relation  to  the  liability  on  instruments  of  that  nature, 
generally  considered,  note,  at  vol.  I.,  p.  397,  Hall  v.  Wilson,  16 
Barb.  548,  and  Andrews  v.  Bond,  16  Barb.  633. 


SUPPLEMENTARY  NOTICE.  x\[[[ 

the  mode  of  trial  on  that  reference,  and  the  power  to  cross- 
examine  a  party  who  has  made  a  deposition  thereon,  note 
Meyer  v.  Lent,  16  Barb.  538,  at  vol.  I.,  pp.  194,  562,  710.  As 
to  the  conclusiveness  of  a  referee's  report,  refer  to  Wood  v.  Fos- 
ter, 16  Barb.  146,  at  vol.  L,  p.  715. 

In  relation  to  limitations,  note,  at  vol.  I.,  p.  98,  Parker  v. 
JacJcson,  16  Barb.  33,  as  to  actions  against  administrators  ;  and, 
at  page  94,  Barker  v.  Sheldon,  16  Barb.  177,  as  to  the  statutory- 
period  running  in  the  case  of  an  endorser,  who  has  paid  the 
amount,  from  the  time  of  payment  by  him,  and  not  from  the 
date  on  which  the  note  on  which  he  was  liable,  fell  due. 

An  executor,  whilst  he  remains  such,  is  not  a  competent 
witness  to  sustain  his  testator's  will ;  but,  on  renunciation,  he 
becomes  so ;  note  Burritt  v.  Silliman,  16  Barb.  1 98,  at  vol.  I., 
p.  653. 

As  to  the  doctrine  of  adverse  possession,  note  Hoyt  v.  Carter, 
16  Barb.  212;  at  vol.  I.,  p.  88. 

In  relation  to  the  waiver  of  the  right  to  move  for  a  new  trial, 
on  the  ground  of  newly  discovered  evidence,  by  want  of  due 
diligence,  note,  at  vol.  I.,  p.  752,  Munn  v.  Worrall,  16  Barb. 
221.  Note  same  case  also,  at  vol.  I.,  p.  78,  in  relation  to  the 
setting  aside  a  decree  on  the  ground  of  fraud,  and  the  possi- 
bility of  a  similar  waiver  in  such  cases,  although,  as  a  general 
rule,  the  decree  should  not  stand. 

Note,  at  vol.  I.,  p.748,  Horner  v.  Wood,  16  Barb.  386,  as  to 
the  disregard  of  immaterial  errors,  on  a  motion  for  a  new 
trial. 

Note  also,  at  vol.  I.,  p.  747,  Stanton  v.  Wethenuax,  16  Barb. 
259,  in  relation  to  a  new  trial  on  the  ground  of  the  erroneous 
admission  of  evidence ;  and,  at  same  page,  Henry  v.  Lowell,  16 
Barb.  268,  as  to  the  right  of  the  judge  to  refuse  to  allow  the 
case  to  be  reopened  by  the  plaintiff,  after  the  defendant  has 
rested.  Note  likewise  at  vol.  I.,  pp.  691  and  747,  Hubbard 
v.  Bonesteel,  16  Barb.  360,  as  to  leaving  the  case  to  the  jury, 
where  there  is  any  evidence.  Note  at  vol.  L,  pp.  72,  374, 
Morehouse  v.  Ballou,  16  Barb.  289,  as  to  joinder  of  parties,  in 
suit  against  the  executors  of  a  deceased  joint  debtor. 

As  to  replevin  being  maintainable,  against  a  party  who  has 
fraudulently  parted  with  the  property,  before  suit,  note  Brock- 
way  v.  Burnap,  16  Barb.  309,  at  vol.  I.,  pp.  240,  403. 

As  to  an  action  on  an  injunction  bond,  and  the  restrictions 


xliv  SUPPLEMENTARY  NOTICE. 

on  the  defence  to  such  action    by  way  of  estoppel,  refer  to 
Loomis  v.  Brown,  16  Barb.  325,  at  vol.  I.,  pp.  402,  485. 

As  to  the  effect  of  a  former  recovery,  and  the  satisfaction  of 
a  justice's  judgment,  by  payment  to  the  justice,  note  Dexter  v. 
Broat,  16  Barb.  337,  at  vol.  I.,  pp.  487,  674,  and  vol.  II.,  p.  83 ; 
note,  also,  at  vol.  I.,  pp.  487,  674,  Groshon  v.  Lyon,  16  Barb. 
461,  as  to  the  former  question,  and  as  to  a  proceeding  on  peti- 
tion being  pleadable  as  res  judicata. 

As  to  the  sheriff's  liability  for  an  escape,  note  Latham  v. 
Westervelt,  16  Barb.  421,  at  vol.  I.,  p.  5,  and  vol.  II.  p.  113. 

In  relation  to  the  admissibility  of  evidence;  note,  at  vol.  I., 
pp.  675,  676,  The  Troy  and  Boston  Railroad  Company  v.  The 
Northern  Turnpike  Company,  16  Barb.  100,  as  to  opinions  of 
witnesses;  Spade  v.  Hudson  River  Railroad  Company,  16  Barb. 
383,  as  to  hearsay  evidence;  and  Horner  v.  Wood,  16  Barb. 
386,  and  Cook  v.  Eaton,  16  Barb.  439,  as  to  the  inadmissibility 
of  parol  evidence  to  vary  a  written  contract. 

As  to  the  taking  of  the  wrong  property  under  an  attachment, 
and  the  sheriff's  liability  in  respect  of  so  doing,  note  Marsh  v. 
Backus,  15  Barb.  483,  at  vol.  I.,  pp.  5,  288.  Note  likewise, 
on  same  subject,  Cross  v.  Phelps,  16  Barb.  502.  Note  Dicker- 
son  v.  Cook,  16  Barb.  509,  at  vol.  II.,  pp.  119,  342,  347,  as  to 
supplementary  proceedings  under  the  Code,  being  applicable  to 
executions  issued  before  its  passage. 

As  to  judgment  in  partition,  and  the  wife's  rights  thereon, 
note  Robinson  v.  McGregor,  16  Barb.  531,  at  vol.  I.,  pp.  65,  412, 
and  vol.  II.,  p.  30.  Kefer  also,  as  to  the  wife's  rights  in  gen- 
eral, at  vol.  I.,  p.  65,  to  Shumway  v.  Cooper,  16  Barb.  556. 

As  to  an  injunction  to  stay  proceedings,  on  a  judgment  fraud- 
ulently kept  alive,  note  Shaiv  v.  Dwight,  16  Barb.  536,  at  vol. 
I.,  p.  250;  vol.  II.,  p.  78. 

As  to  the  waiver  of  demurrable  objections,  not  taken  in  that 
form,  note  Loomis  v.  Tift,  16  Barb.  541,  at  vol.  I.,  p.  464. 

v\s  to  the  conversion  of  an  intended  reference  into  an  arbi- 
tration, by  the  course  of  procedure  thereon,  note  Jones  v. 
Ouytot  L6  Barb.  57*;,  at  vol.  I.,  p.  706,  and  vol.  II.,  p.  320. 

As  to  tin-  examination  of  the  endorser  of  a  note,  as  assignor 
of  a  chose  in  action,  note  Jagoe  v.  Alleyn,  16  Barb. 580,  at  vol. 
I.,  p.  65 !  • 

As  to  executions  on  justices'  judgments,  refer  to  Price  v. 
Shipp  ,  L6  Barb.  586,  at  vol.  I!.,  p.  117. 

As  to  costs  on  appeals    from  surrogates'  decrees,  and  the 


PRACTICE  AND  PLEADING 


THE  CODE. 


BOOK     I 


OF  THE  COURTS  OF  JUSTICE    WITHIN  THE   STATE    OF    NEW 

YORK. 


CHAPTER   I. 

OF'  JUDICIAL  AND  OTHER  OFFICERS 


§  1.  Judicial  Office. 

Pursuing  the  plan  laid  down  in  the  Introduction,  and  assum- 
ing that  the  reader  has  already  mastered  the  elementary  works 
on  the  science  of  Law,  and  is  acquainted  with  the  general  cha- 
racteristics of  the  tribunals  established  for  its  administration 
within  the  State,  it  will  be  unnecessary  to  enter  into  any  length- 
ened remarks  on  the  general  nature  of  the  judicial  office,  on  the 
powers  and  privileges  which  that  office  confers,  or  on  the  pecu- 
liar responsibilities  and  disabilities  of  its  holders.  Extensive  in 
other  respects  as  have  been  the  recent  changes,  the  abstract 
duties  and  abstract  responsibilities  of  the  judicial  officer,  apart 
from  the  peculiar  constitution  of  the  tribunal  in  which  from  time 
to  time  it  may  be  his  province  to  exercise  jurisdiction,  remain 
practically  unchanged  ;  and  the  recent  decisions  on  that  subject 
present  therefore  few,  if  any,  features  of  importance.  The  only 
case,  in  fact,  to  which  it  seems  necessary  to  make  any  allusion, 
is  that  of  Oakley  v.  Aspimvall,  3  Comst.  547,  9  L.  0.  45,  in  which 
it  was  held  by  a  majority  of  the  Court  of  Appeals,  that  the  dis- 
qualification of  consanguinity  to  one  of  the  litigant  parties,  is 
a  fatal  objection  to  the  validity  of  any  decision  which  a  judge 

(i) 


2  JUDICIAL  AND  OTHER  OFFICERS. 

so  disqualified  shall  either  pronounce  or  concur  in  pronouncing; 
and  that  no  form  of  consent,  naj  more,  not  even  the  expressed 
wish  of  the  parties,  that  the  judge  so  disqualified  should  remain 
and  exercise  his  functions,  can  avail  to  remove  that  objection,  or 
render  valid  a  j  udgment  so  pronounced. 

§  2.  Judicial  Powers,  Delegation  of. 

In  all  its  more  essential  attributes,  the  judicial  office  is,  from 
its  very  nature,  incapable  of  delegation.  In  some  few  respects, 
however,  functions  falling  in  strictness  within  the  province  of 
the  judge,  are  nevertheless  capable  of  being  exercised  by  deputy, 
to  a  certain  extent,  and  in  certain  specified  cases.  Those  cases 
may  be  shortly  classified  as  follows  : 

1st.  The  granting  of  interlocutory  orders,  and  the  exercise  in 
general  of  the  powers  of  a  judge  of  the  Supreme  Court  at  cham- 
bers, an  authority  exercisable  by  county  judges  within  the  limits 
of  their  jurisdiction. 

2.  The  examination  into  accounts,  or  complicated  questions 
of  fact,  and  the  taking  of  testimony  in  relation  thereto,  includ- 
ing in  certain  cases  the  power  of  deciding  on  such  questions  in  the 
place  of  the  court,  which  powers  are  exercised  by  referees  spe- 
cially appointed  for  that  purpose. 

3.  The  taking  of  testimony  by  commission ;  in  which  pro- 
ceeding the  commissioners  stand  to  a  certain  extent,  and  within 
the  limits  of  their  authority,  in  the  place  of  the  court. 

§  3.    Clerk  of  Court. 

The  decision  of  the  court  or  jury  on  the  controversy  at  issue 
havin,'-!;  been  pronounced,  must  of  necessity  be  duly  recorded. 
The  clerk  of  the  court  is  the  officer  appointed  for  this  purpose. 
II      ;ii  ubstantially  unaltered  by  the  Code,  and  he  still 

remains,  .'is  under  tin'  "Id  practice,  the  authorized  depositary  of 
the  records  <'('  his  peculiar  tribunal,  and  the  official  registrar  of 
orders  pronounced  by  it.  Ho  possesses  also,  in  addition  to 
these  ordinary  duii<\s,  the  power,  r:c officio,  of  assessing  the  amount 
due  on  the  entrj  ofjudgments  for  the  recovery  of  money  only, 
— sees.  240  and  810,  and  of  taxing  the  costs  of  the  prevailing  party 
on  the  entry  ofjudgments  of  whatever  nature — sec.  311.     In 


JUDICIAL  AND  OTHER  OFFICERS.  3 

respect  of  these  and  other  services  he  receives  various  fees  which 
are  prescribed  by  section  312.  His  decisions  on  such  assessment 
or  taxation  of  costs  are,  however,  reviewable  by  the  court — See 
Whipple  v.  Williams,  4  How.  28, — and  any  irregularities  com- 
mitted by  him  in  the  performance  of  his  ministerial  duties,  will 
be  corrected  on  proper  application,  and  the  parties  placed  in  the 
situation  in  which  they  would  have  stood  had  such  irregulari- 
ties not  occurred.  Neele  v.  Berryhill,  4  How.  16.  See  also 
Renouil  v.  Harris,  2  Sandf.  641  ;  2  C.  R.  71,  and  other  decisions 
below  cited.  The  county  clerk  of  each  county  is  also  ministerially 
an  officer  of  every  one  of  the  different  tribunals  throughout  the 
State,  in  so  far  as  regards  the  docketing  of  their  judgments  in 
his  particular  county,  as  a  necessary  preliminary  to  their  enforce- 
ment by  execution  against  property  situate  within  its  limits. 
The  course  to  be  pursued  in  the  event  of  any  neglect  on  the  part 
of  these  officers  in  the  due  performance  of  their  ministerial 
duties,  is  .provided  for  by  No.  6  of  the  Rules  of  the  Supreme 
Court. 

§  4.  Affidavits,  taking  of. 

The  clerk  of  the  court  has  likewise,  ex  officio,  the  power  of 
taking  affidavits  in  his  own  peculiar  tribunal.  Such  affidavits 
may  also  be  sworn  before  any  of  the  officers  styled  commissioners 
of  deeds.  The  functions  of  these  last  parties  are  purely  minis- 
terial, and  therefore  consanguinity  to  any  of  the  parties  to  a  suit 
is  no  valid  objection  to  the  exercise  of  those  functions  in  any 
proceeding  therein.  Lynch  v.  Livingston,  8  Barb.  463.  They 
cannot,  however,  act  in  any  proceeding  in  which  they  them- 
selves are  concerned,  either  as  parties,  attorneys,  or  counsel, 
or  as  partners  of  the  latter.  See  Oil/more  v.  Hempstead,  4  How. 
153.  It  would  seem,  though,  that  this  disqualification  only  ex- 
tends to  suits  actually  pending,  and  that  in  other  proceedings, 
and  even  on  a  confession  of  judgment  without  action,  the  veri- 
fication may  be  made  before  the  attorney  of  one  of  the  parties. 
Post  v.  Coleman,  9  How.  64.  In  foreign  countries  affidavits 
may  be  taken  before  any  of  the  officers  authorized  by  the  Re- 
vised Statutes  to  take  acknowledgments  of  deeds,  and  also 
before  any  Consul  or  Vice  Consul,  or  Minister  resident  of  the 
United  States.— Laws  of  1854,  c.  206,  p.  475. 


4  JUDICIAL  AND  OTHER  OFFICERS. 

§  5.  Sheriffs,  Sfc. 

The  j udgments  of  the  court,  or  orders  of  the  judge,  duly  en- 
tered, or  recorded  by  the  clerk,  are,  on  process  duly  issued,  en- 
forceable by  the  sheriff.  For  this  and  other  purposes,  (and  par- 
ticularly with  reference  to  the  summoning  of  juries,  and  the  pro- 
ceedings connected  therewith,)  the  latter  may  be  considered  as 
an  officer  of  the  court.  Ilis  duties  in  these  respects,  [save  as 
regards  certain  ministerial  acts  which  will  be  treated  of  in  due 
course,  in  connection  with  the  proceedings  to  which  they  relate,] 
and  his  responsibilities  in  relation  to  the  performance  of  those 
duties,  remain  as  settled  by  the  old  practice.  Express  provision 
is  made  by  sec.  291,  and  also  by  sec.  419,  in  relation  to  his  lia- 
bilities in  these  respects.  The  same  remarks  may  be  made  with 
regard  to  the  duties  and  office  of  the  coroner,  as  the  ministerial 
agent  of  the  court  for  the  execution  of  process  against  the  she- 
riff himself  when  necessary. 

In  addition  to  his  duties  in  relation  to  the  enforcement  of  the 
judgments  or  orders  of  the  court,  the  sheriff  may  also,  at  the 
plaintiff's  option,  be  made  the  latter's  official  agent  for  service 
of  the  process  by  which  an  action  is  commenced,  sec.  133  and 
138 ;  and,  in  some  cases,  his  employment  for  that  purpose  may 
be  highly  advisable,  nay,  even  necessary,  with  a  view  to  saving 
the  statute  of  limitations,  sec.  99.  Under  these  circumstances 
he  is  equally  responsible,  under  sec.  419,  for  the  due  perform- 
ance of  the  duties  so  intrusted  to  him. 

Although  the  Code  itself  is  silent  on  the  subject,  rule  6  of  the 
Supreme  Court  prescribes  that  a  party  aggrieved  by  any  neglect 
on  the  part  of  the  sheriff  or  coroner  as  above,  may  serve  upon 
him  a  notice  to  perform  the  act  required,  within  ten  days,  or 
show  cause  why  an  attachment  should  not  issue  against  him; 
the  ulterior  proceedings  under  such  notice  being  conducted 
according  to  the  old  practice  in  similar  cases. 

Without  entering  fully  into  the  question,  a  notice  of  some 
of  the  recently  decided  cases  in  relation  to  the  duties  and  lia- 
biliti  his  officer,  and  of  his  deputies,  may  be  useful. 

The  law  in  relation  to  the  appointment  and  functions  of  the 
latter  will  \w.  found  laid  down  in  GHlbert  \.  Luce,  1  I  Barb.  91. 
WTiere  the  i  herifEj  knowing  that  tin'  defendan  thad  property  to 
satisfy  the  debt  in  Pull,  neglected  to  levy  a  sufficient  amount 


JUDICIAL  AND  OTHER  OFFICERS.  5 

under  an  attachment,  he  was  held  liable  in  an  action  for  the 
deficiency. — Ransom  v.  Halcott,  9  How.  119. 

The  sheriff  is  not  protected  in  taking  the  goods  of  a  wrong 
party,  even  though  directed  to  do  so  by  the  writ.—  Stimpson  v. 
Reynolds,  14  Barb.  506;  see  also  Hoyt  v.  Van  Alstyne,  15  Barb. 
568. 

The  sheriff  is  answerable  for  the  acts  of  his  deputies,  and  is 
liable  on  his  official  bond  if  they  seize  the  goods  of  a  wrong 
party.  If  he  have  taken  an  indemnity,  his  sureties  are  entitled 
to  be  subrogated  to  it,  in  an  action  brought  against  him. — The 
People  v.  Schuyler,  4  Comst.  173.  He  is  also  liable  for  the  mis- 
takes and  misfeasances  of  those  deputies. — Sheldon  v.  Paine, 
Court  of  Appeals,  30th  Dec.  1852 ;  Waterbury  v.  Westervelt, 
Court  of  Appeals,  18th  April,  1854. 

Where  however  the  sheriff  has  neglected  or  violated  his 
duty,  so  as  to  be  required  to  pay  the  plaintiff,  he  ought  not,  as 
a  general  rule,  to  be  permitted  to  use  the  judgment  for  his  own 
benefit,  unless  under  peculiar  circumstances  and  by  express 
leave  of  the  court. —  Carpenter  v.  Stilhvell,  12  Barb.  128. 

With  respect  to  the  liability  of  the  sheriff  on  an  escape,  it 
has  been  held  that  the  subsequent  death  of  an  escaped  debtor 
before  action  brought,  was  no  bar  to  its  enforcement,  though 
the  recapture  or  voluntary  return  of  such  debtor  would  have 
been  so. — Tanner  v.  Hallenheck,  4  How.  297.  Nor,  on  such  an 
action  brought  against  him,  can  he  avail  himself  of  any  defects 
in  the  original  process,  rendering  such  process  voidable  only, 
and  not  actually  void. — Hutcjiinson  v.  Brand,  6  How.  73, 
affirmed  by  the  Court  of  Appeals  31st  December,  1853.  On  a 
recovery  against  him  in  such  an  action,  he  is  liable  for  the 
whole  judgment  and  costs,  but  not  for  interest  on  the  former. 

It  was  also  held  in  Brown  v.  Tracy,  9  How.  93.  that  he  is 
liable  for  an  escape  where  a  person  charged  in  execution  on 
final  process  is  taken  from  his  custody,  upon  a  Avarrant  of  a 
police  justice.  He  had  a  right  to  detain  the  prisoner,  and  was 
bound  to  do  so. 

Where  the  sheriff  has  become  liable  as  bail  on  an  arrest,  by 
the  omission  of  the  sureties  to  justify,  he  may  put  in  substi- 
tuted bail  at  any  time  before,  but  not  after,  process  against  the 
person  of  the  defendant.  He  is  however  only  liable  as  other  bail 
are.  and  has  the  same  right  to  surrender  the  defendant  within 


Q  JUDICIAL  AND  OTHER  OFFICERS. 

twenty  days  after  action  brought,  as  is  given  to  them  by  s.  191 ; 
and,  upon  obtaining  lawful  custody  of  the  defendant,  so  that  he 
may  be  retained  on  process,  he  will  be  discharged  from  his  lia- 
bility.— Buchman  v.  Carnley,  9  How.  180.  He  has  also  the 
same  rights  as  other  bail  to  arrest  and  surrender  the  defendant, 
for  which  purpose  no  process  is  necessary. — Sartos  v.  Merceques, 
9  How.  188. 

In  an  action  against  the  sheriff  for  neglect  in  not  levying  and 
returning  a  writ,  the  plaintiff  is  u prima  facie"  entitled  to  recover 
the  amount  of  the  judgment,  with  interest.  He  may  show,  how- 
ever, in  mitigation  of  damages,  that  the  whole  sum  could  not 
have  been  collected  by  due  diligence  on  his  part.  Ledyard  v. 
Jones,  4  Sandf.  67. 

Van  Rensselaer  v.  Chadwick,  7  How.  297,  contains  an  "obiter 
dictum"  that  the  sheriff's  return  as  to  service  of  process  is  capable 
of  being  disproved.  The  better  opinion  seems  however  to  be, 
that  it  is  conclusive  in. all  cases  as  regards  his  official  acts. — 
The  Col.  Insurance  Co.  v.  Force,  8  How.  353 ;  Learned  v.  Van- 
denburgh,  7  How.  379 ;  Russell  v.  Gray,  11  Barb.  541. 


§  6.   Other  Ministerial  Officers. 

The  authorized  depositary  of  moneys  brought  into  court  by 
the  authority  of  the  different  tribunals,  is,  in  the  absence  of 
special  directions  upon  the  subject,  the  county  treasurer  of  the 
county  in  which  the  action  is  triable,  or,  in  the  city  of  New 
York,  the  chamberlain  of  that  city.  The  statutory  provisions 
in  relation  to  this  subject  will  be  found  at  1  E.  S.  369 — 371, 
and  the  rules  of  the  Supreme  Court  on  the  subject,  in  Nos.  79 
to  81  inclusive. 

Although  not  regular  officers  of  the  court,  receivers  and 
guardians  ad  litem  may,  in  reference  to  the  purposes  for  which 
they  are  respectively  appointed,  be  considered  as  standing 
ministerially,  and  as  exercising  limited  powers  in  that  capacity; 
though  only  on  delegation  of  those  powers  in  the  first  instance, 
and  subject  to  the  control  of  the  court  in  all  respects  with  refer- 
ence to  their  exercise,  The  authorities  so  exercised,  and  the 
duties  of  these  officers  in  relation  thereto,  will  be  considered 
hereafter. 


JUDICIAL  AND  OTHER  OFFICERS.  7 

§  7.   Attorneys  and   Counsel. 

The  above  summary  includes  all  the  regular  officers  of  a 
duly  constituted  court,  through  whose  medium  its  decisions  are 
pronounced  in  the  first  instance,  and  afterwards  duly  recorded 
and  enforced.  An  important  class  remains  however  to  be  no- 
ticed, who,  though  exercising  no  ministerial  functions,  are  yet 
so  far  officers  of  the  court,  in  that  they  were  originally  ap- 
pointed by  its  authority,  and  remain  subject  to  its  control, 
and  also,  in  certain  cases,  must  exercise  their  functions  without 
remuneration,  under  its  special  direction.  See  2  E.  S.  444  and 
445,  in  relation  to  suits  in  forma  pauperis.  The  class  alluded 
to  is  that  of  counsel  and  attorneys,  by  whom  the  proceedings 
in  any  court  whatsoever  are  usually  conducted,  from  their  out- 
set to  their  final  termination. 

The  duties  and  responsibilities  of  these  quasi  officers,  the 
privileges  they  enjoy,  the  disabilities  under  which  they  labor, 
and  the  mode  in  which  any  misconduct  on  their  part  may  be 
provided  against,  or  punished,  remain  entirely  unaltered  by  the 
Code,  and  are  governed  in  all  respects  by  the  old  practice ;  to  the 
treatises  on  which,  and  also  to  the  different  provisions  on  these 
subjects  in  the  Eevised  Statutes,  the  reader  is  accordingly  referred, 
in  accordance  with  the  plan  prescribed  at  the  outset  of  the 
work.  The  only  points  in  which  the  law  on  the  subject  is  at 
all  affected  by  the  recent  measures  are,  first,  in  relation  to  the 
original  appointment  of  these  parties,  and  secondly,  by  the  total 
repeal  of  all  legislative  provisions,  and  of  the  former  powers  of 
the  court  to  control  and  prevent  abuse  in  the  pecuniary  arrange- 
ments between  them  and  their  clients,  effected  by  sec.  303  of 
the  Code.  See,  however,  this  subject  hereafter  considered  in 
connection  with  this  last  provision,  and  the  case  of  Barry  v. 
Whitney,  3  Sandf.  696;   1  C.  E.  (K  S.)  Ill,  there  cited. 

The  offices  of  attorney  and  counsel,  separated  in  England  by 
rigid  and  impassable  barriers,  are,  in  this  State,  not  merely  com- 
patible, but  universally  exercised  in  conjunction  with  each  other, 
all  the  former  restrictions  upon  and  prerequisites  to  the  appoint- 
ment to  those  offices,  being  at  once  and  for  ever  swept  away 
by  sec.  8  of  article  6  of  the  present  constitution,  which  provides 
as  follows : 

"Any  male  citizen  of  the  age  of  twenty-one  years,  of  good 
moral  character,  and  who  possesses  the  requisite  qualifications 


8  JUDICIAL  AND  OTHER  OFFICERS. 

of  learning  and  ability,  is  entitled  to  admission  to  practice  in  all 
the  courts  of  the  State;"  the  spirit  of  which  provision  has  since 
been  fully  carried  out  in  detail ;  first  by  the  Judiciary  Act,  and 
ultimately  by  Eules  1  and  2  of  the  Supreme  Court,  by  which  the 
practice  on  admissions  is  now  governed,  and  to  which  according- 
ly the  reader  is  referred  upon  the  subject.  That  an  absolute 
compliance  with  these  rules  in  every  respect  is  necessary  in  all 
cases,  was  decided  in  Re  Brewer,  3  How.  169. 

In  the  amended  Judiciary  Act,  however,  (c.  490  of  Laws  of 
1847,)  a  provision  is  inserted,  sec.  46,  which  has  given  rise  to 
considerable  and  doubtful  discussion.  The  provision  in  ques- 
tion is  as  follows: 

"Any  person  of  good  moral  character,  although  not  admitted 
as  an  attorney,  may  manage,  prosecute,  or  defend  a  suit  for  any 
other  person,  provided  he  is  specially  authorized  for  that  pur- 
pose by  the  party  for  whom  he  appears,  in  writing,  or  by  per- 
sonal nomination  in  open  court." 

An  important  question  has  been  raised  as  to  the  constitution- 
ality of  this  provision,  although,  even  in  the  strictest  view  that 
can  be  taken,  it  confers  no  general  license  to  practise  on  the  part 
of  the  person  claiming  to  act  under  it;  but  is,  on  the  contrary, 
a  mere  special  and  limited  authority,  confined  to  the  individual 
case  for  which  a  special  nomination  is  made,  and  to  that  case 
alone :  and  a  series  of  decisions  have  been  pronounced  on  the 
subject,  holding  it  to  be  unconstitutional.  The  first  of  these  is 
Bullard  v.  Van  Tassell,  3  How.  402,  followed  up  by  Weare  v. 
Slocum,  1  C.  E.  105 ;  3  How.  397,  (although  in  that  case 
the  question  as  to  a  personal  retainer  does  not  seem  to  have 
been  raised,)  and  lastly  by  McKoan  v.  Devries,  3  Barb.,  196 ;  1 C. 
E.  6.  The  latter  may  be  looked  upon  as  the  leading  case  on 
the  subject,  and  in  it  the  doctrine  of  unconstitutionality  by  im- 
plication is  pushed  to  its  utmost  limits,  in  direct  opposition  to 
the  principles  laid  down  in  Beecher  v.  Allen,  5  Barb.  169,  that 
courts  of  Law  ought  not  rashly  to  presume  that  the  legislature 
has  transcended  its  powers,  but  that  the  presumption  lies  the 
other  v.  ay,  in  all  cases  where  any  reasonable  doubt  is  admissi- 
ble. It  appears  also  by  a  note,  1  C.  R.  100,  that,  in  another 
district,  Sill,  J.,  refused  1<>  be  bound  by  the  decision  in  Mdvoan 
V.  Devries,  and   allowed   a   party  not  an  attorney,  to  appear  for 

another,  on  bis  due  compliance  with  the  requisites  imposed  by 
the  provision  in  question. 


JUDICIAL  AND  OTHER  OFFICERS.  9 

Two  branches  of  the  Supreme  Court  are  thus  in  direct  conflict 
on  the  subject  of  the  above  provision,  and  it  seems  a  matter  .to 
be  regretted  that  the  particular  question  has  not  yet  been  set  at 
comparative  rest  by  the  decision  of  a  general  term  of  that  court. 

The  point  as  to  whether  parties  may  or  may  not  act  wisely 
in  availing  themselves  of  the  facilities  hereby  granted,  is  entirely 
beside  the  question.  Any  right  of  whatever  nature,  constitu- 
tionally given  by  the  legislature  in  the  regular  exercise  of  its 
powers,  cannot  constitutionally  be  taken  away  by  any  subordi- 
nate authority,  on  any  forced  construction,  or  on  any  consider- 
ations as  to  its  convenience  or  inconvenience.  The  legislature, 
in  the  ordinary  exercise  of  those  powers,  have  passed  the  en- 
actment in  question,  such  as  it  is  ;  that  enactment  being,  more- 
over, one  calculated  rather  to  extend  than  to  abridge  the  general 
liberties  of  the  citizen :  and  if  that  enactment  can  by  any  con- 
struction be  carried  into  effect,  without  a  direct  and  positive 
violation  of  the  constitution,  the  courts,  it  may  well  be  contend- 
ed, are  bound  to  give  it  that  effect,  whatever,  may  be  their  own 
views  on  the  subject;  and  certainly  the  general  doctrines  as  to 
constitutionality  or  unconstitutionality  as  laid  down  in  Beecher 
v.  Allen,  seem,  when  examined,  preferable  to  those  maintained 
in  McKoan  v.  Devries,  and  the  other  cases  to  the  same  effect ; 
the  former  being,  moreover,  a  decision  of  the  general,  and  the 
others  of  the  special  term. 

In  Boy  v.  Harley,  11  L.  0.  29,  1  Duer,  637,  the  question 
was  brought  before  the  Superior  Court ;  and,  although  the  point 
of  constitutionality  was  not  directly  passed  upon,  but  is  on  the 
contrary  expressly  avoided,  the  general  scope  of  the  opinion 
of  Bos  worth,  J.,  given  on  consultation  with  the  other  justices, 
seems  to  infer  that,  if  made  in  due  form,  such  a  nomination 
might  be  sustained  by  that  tribunal.  It  was  held  that  full  and 
satisfactory  evidence  of  the  appointment  itself,  and  also  of  the 
good  moral  character  of  the  party  named,  must  be  adduced,  and 
an  order  of  the  court  must  then  be  obtained  and  entered,  and 
subsequently  incorporated  in  the  judgment  roll ;  after  which 
order,  such  party  may  proceed  in  the  action,  and  his  proceedings 
will  then  be  regular,  unless  the  provision  of  the  Judiciary  Act 
in  question  be  unconstitutional.  The  above  conditions  pre- 
cedent to  the  validity  of  such  an  appointment,  not  having  been 
complied  with  in  that  particular  case,  the  proceedings  of  the 
parties  there  in  question  were  declared  irregular  and  set  aside. 


10  COURTS  OF  JUSTICE. 


CHAPTER  II. 

OF  THE  DIFFERENT  COURTS  OF  JUSTICE  "WITHIN  THE  STATE 
OF  NEW  YORK. 


§  8.    Courts,  List  of. 

In  section  9  of  the  Code,  a  list  is  given  of  the  different  tribu- 
nals within  the  State,  and,  in  the  following  section,  their  then 
present  jurisdiction  is  saved  in  all  cases,  except  as  otherwise 
prescribed  by  that  Act. 

The  list  in  question  is  as  follows : 

1.  The  court  for  the  trial  of  impeachments. 

2.  The  Court  of  Appeals. 

3.  The  Supreme  Court. 

4.  The  Circuit  Courts. 

5.  The  Courts  of  Oyer  and  Terminer. 
G.  The  County  Courts. 

fJ.  The  Courts  of  Sessions. 

8.  The  Courts  of  Special  Sessions. 

9.  The  Surrogates'  Courts. 

10.  The  courts  of  justices  of  the  peace. 

11.  The  Superior  Court  of  the  city  of  New  York. 

12.  The  Court  of  Common   Pleas  for  the  city  and  county  of  New 

York. 
18.  The  Mayors'  Courts  of  cities. 

14.  The  Recorders'  Courts  of  cities. 

15.  The  Marine  Court  of  the  city  of  New- York. 
10.  The  Justices1  Courts  id  the  city  of  New-York. 

17.  The  Justices'  Courts  of  cities. 

18.  The  Police  Courts. 

It.  will  of  course  be  observed,  that,  valuable  as  an  official  list 

of  the  different  courts  of  justice  unquestionably  is,  still,  as  rc- 

rds  the  operation  of  the  Code  itself,  that  list  is  in  part  irrele- 


COURTS  OF  JUSTICE.  H 

vant,  many  of  the  tribunals  enumerated  being  neither  directly 
nor  indirectly  affected  by  its  provisions.  Those  provisions 
relate  simply  and  solely  to  civil,  and  trench  in  no  manner  upon 
the  limits  of  either  criminal  or  police  jurisdiction  ;  and  there- 
fore the  proceedings  in  Nos.  1,  5,  7,  8,  and  18,  which  courts  fall 
exclusively  within  one  or  the  other  of  the  latter  categories,  are 
entirely  without  their  scope. 

The  Surrogate's  courts,  (No.  9,)  being  tribunals  exercising 
special  statutory  jurisdiction,  are  likewise  in  no  manner  affected 
by  the  recent  changes.  Proceedings  in  them,  and  the  review 
of  those  proceedings,  are,  on  the  contrary,  exclusively  and  en- 
tirely governed  by  the  provisions  of  the  Revised  Statutes. 

The  marine  and  justices'  courts  also,  Nos.  15,  16,  and  17, 
though  their  jurisdiction  is  defined  by  the  Code,  and  the  gene- 
ral course  of  practice  in  them  laid  down  by  title  VI.  of  part  I. 
of  that  measure,  are  likewise  mainly  governed  by  other  statu- 
tory provisions.  The  course  of  proceedings  in  those  courts  is 
essentially  different  in  all  its  main  features  from  that  pursued 
in  those  of  higher  jurisdiction,  and  remains  substantially  the 
same  as  heretofore.  No  attempt  has  accordingly  been  made  by 
the  author  to  enter  into  the  full  details  of  their  practice,  his  ob- 
servations on  the  subject  being  confined  to  a  mere  reference  to 
the  enactments  of  the  Code  as  regards  the  tribunals  in  question, 
and  a  citation  of  the  different  reported  cases  which  bear  upon 
the  appellate  jurisdiction  of  the  higher  courts  in  relation  to 
the  review  of  their  decisions.  To  have  attempted  more  than 
this,  would  have  involved  the  composition  of  a  separate  and  in- 
dependent treatise,  upon  a  subject  unconnected  with  the  general 
operation  of  the  Code,  and  one  moreover  already  separately 
dealt  with  by  others. 

§  9.  Federal  Courts,  Jurisdiction  of. 

Before  proceeding  to  the  detailed  consideration  of  the  juris- 
diction and  functions  of  the  different  tribunals  comprised  in 
the  foregoing  list,  another  subject  seems  to  require  at  least  a 
cursory  notice,  though  in  strictness  of  a  collateral  nature ;  that 
subject  being  the  exclusive  or  concurrent  jurisdiction  of  the 
federal  courts  in  certain  cases. 

To  enter  into  any  lengthened  discussion  upon  the  extent  and 
exercise  of  that  jurisdiction,  would  be  of  course  beyond  the  limits 


12  COURTS  OF  JUSTICE. 

of  the  present  work ;  while,  on  the  other  hand,  to  omit  all  re- 
ference to  it  might  lead  to  serious  inconvenience.  The  better 
course  appears  to  be  to  give  a  slight  sketch  of  its  extent  and 
boundaries,  and  then  to  leave  the  matter  open  for  the  further  re- 
searches of  the  student,  merely  indicating  the  sources  through 
which  those  researches  may  best  be  prosecuted. 

He  cannot  take  a  better  guide  for  this  purpose  than  the  first 
volume  of  the  invaluable  commentaries  of  Chancellor  Kent, 
part  II.,  consulting,  in  particular,  Lectures  XIV.  to  XIX.  inclu- 
sive,  with  the  different  statutory  provisions  and  authorities  there 
cited.  The  summary  contained  in  the  first  volume  of  Conkling's 
treatise  will  also  be  found  succinct  and  trustworth}^.  An 
attentive  perusal  of  these  two  works  will  be  sufficient  to  give  a 
good  general  idea  upon  the  subject,  and  to  suggest  the  further 
course  of  reading  by  which  its  details  may  be  fully  mastered. 

Without  pretending,  therefore,  to  give  more  than  a  mere 
sketch  of  the  jurisdiction  in  question,  that  jurisdiction  may  be 
defined  as  threefold — 

1.  The  original  and  exclusive, 

2.  The  concurrent, 

3.  The  appellate  authority  possessed  by  the  courts  referred  to, 
within  the  limits  of  the  State  sovereignties,  and  which  authori- 
ties are  exercisable,  the  two  former  by  the  District  and  Circuit, 
and  the  latter  by  the  Supreme  Court  of  the  United  States. 

The  original  and  exclusive  jurisdiction  of  the  federal  tribu- 
nals extends  to  controversies  of  the  following  nature : 

1.  To  cases  between  two  States. 

2.  To  cases  where  a  foreign  ambassador,  minister,  or  consul, 
or  the  domestics  of  the  two  former,  are  parties  defendants. 

3.  To  cases  in  which  a  State  is  defendant,  save  only  as  re- 
gards controversies  between  a  State  and  its  own  citizens. 

4.  To  c;iscs  arising  under  the  patent  or  copyright  laws,  or  the 
revenue  laws  of  the  United  States. 

.'».  Tn  else:-,  of  admiralty  or  maritime  jurisdiction;  and, 
6.  To  criminal  cases  arising  within  the  limits  of  that  juris- 
diction, or  cognizable  under  the  authority  of  the  United  States. 
In  Dudley  v.  dfayhew,  8  Comst.  1),  it  was  held  by  the  Court 
of  Appeals  in  this  State  that,  in  cases  falling  under  class  4, 
the  Stall-  courts  cannot  exercise  jurisdiction  even  by  consent. 
The  persona]  privileges  under  class  2  seem,  however,  capable 
of  being  waived   by  continued  non-assertion,  though  the  right 


COURTS  OF  JUSTICE.  13 

of  asserting  them  can  never  be  barred,  but  may,  on  the  contrary, 
be  exercised  at  any  stage  of  any  proceeding  in  the  local  tri- 
bunals. See  this  subject  more  fully  considered  hereafter, 
under  the  head  of  parties  defendants  in  actions  in  the  courts 
of  this  State. 

The  concurrent  jurisdiction  of  the  federal  tribunals  may  be 
shortly  stated  as  comprising, 

1.  All  cases  in  law  or  equity,  arising  under  the  Constitution, 
laws  and  treaties  of  the  United  States  ;  or  where  an  alien  sues 
for  tort  in  violation  of  the  law  of  nations. 

2.  Cases  wherein  foreign  ambassadors,  consuls,  &c,  are  plain- 
tiffs. 

3.  Cases  wherein  the  United  States  are  plaintiffs. 

4.  Controversies  in  which  a  State  is  plaintiff,  and  individuals 
are  defendants. 

5.  Controversies  between  a  State,  defendant,  and  its  own 
citizens. 

6.  Controversies  between  citizens  of  different  States,  or  between 
citizens  of  the  same  State,  claiming  lands  under  grants  of  dif- 
ferent States. 

7.  Controversies  between  a  State  or  the  citizens  thereof,  and 
a  foreign  state. 

8.  Controversies  between  citizens  and  aliens. 

The  jurisdiction  under  classes  3,  6,  and  8,  is,  however,  limited 
to  cases  where  the  value  of  the  thing  in  controversy  exceeds  live 
hundred  dollars;  the  amount  of  the  claim  itself,  and  not  of  the 
recovery,  being  the  criterion  of  value.  Where  exercisable,  the 
jurisdiction  in  cases  of  this  description  is  so  far  paramount,  that 
they  are  removable  from  the  State  court  to  the  federal  tribunal 
by  authority  of  the  latter,  by  means  of  a  proceeding  analogous 
to  certiorari.  See  Kent  Com.  vol.  1,  p.  303.  See  also  Field  v. 
Blair,  1  C.  E.  (N.S.)  292,  361 ;  Suydam  v.  Ewing,  Id.  294. 

In  cases  falling  under  Nos.  6  and  8  of  the  last-mentioned 
classes,  it  is  essential  that  the  facts  conferring  jurisdiction  should 
appear  on  the  face  of  the  record,  or  the  federal  tribunal  cannot 
take  cognizance  of  them  at  all.  In  particular,  where  one  party 
is  an  alien,  the  citizenship  of  the  other  must  be  affirmatively 
shown,  the  jurisdiction  of  the  federal  courts  not  extending  to 
suits  between  one  alien  and  another.  See  1  Kent,  344  and  345, 
and  the  cases  there  cited. 

The  appellate  jurisdiction  of  the  federal  tribunals  extends,  in 


14  COURT  OF  APPEALS. 

the  last  place,  to  all  cases  in  which  any  decision  shall  have  been 
pronounced  by  the  highest  court  of  any  State,  repugnant  to  the 
Constitution,  treaties,  or  statutes  of  the  United  States,  or  draw- 
ing in  question  any  commission  issued  or  authority  conferred  by 
the  general  government.  The  extent  of  this  jurisdiction  will 
be  found  defined  at  1  Kent  Com.  p.  299  and  300;  and  the  whole 
of  the  lecture,  No.  XIV.,  in  which  that  passage  is  contained,  and 
the  following  one,  No.XV  .,  in  which  the  subject  is  more  fully 
entered  upon,  and  various  authorities  are  cited,  demands  and 
should  receive  the  student's  most  careful  attention. 

On  questions  of  commercial  law,  the  decisions  of  the  Supreme 
Court  of  the  United  States  ought  to  be  regarded  as  paramount 
and  controlling.  Stoddard  v.  The  Long  Island  Railroad  Company, 
5  Sandf.  180. 

In  relation  to  the  possible  conflict  of  jurisdiction  in  matters 
falling  equally  within  the  cognizance  of  the  federal  and  State 
tribunals,  vide  The  People  v.  The  Sheriff  of  Westchester  County, 
10  L.  O.  298  ;  and  likewise  in  reference  to  the  issue  of  warrants 
by  an  United  States  Commissioner,  In  Re  Kaine,  10  L.  O.  257; 
and  In  Re  Eickhoff,  11  L.  O.  310.  See  also,  as  to  the  light  in  which 
the  federal  jurisdiction  is  generally  regarded  in  the  State  courts, 
The  Chemung  County  Bank  v.Judson;  Court  of  Appeals,  12th 
April,  1853. 


CHAPTER     III. 

OF      THE     COURT    OF      APPEALS. 

§    10.  Jurisdiction  and  Poiocrs  of. 

PROCEEDING  then  upon  the  consideration  of  the  jurisdiction 

;   office  of  each  of  the  different  tribunals  whose  practice  is 

affected  by  the  Code  of  Procedure;  the  first  in  dignity  and  im- 

is  the  Court  of  Appeals,  the  tribunal  of  last  resort, 

spt  in  those  few  cases  arising  on  points  of  constitutional  law, 

in  which,  as  before  noticed,  the  appellate  jurisdiction  of  the 

reme  Couii  of  the  United  States  may  be  invoked. 

Such  being  the  constitution  and  powers  of  the  Court  of  Ap- 


COURT  OF  APPEALS.  15 

peals,  it  need  hardly  be  remarked,  that  its  reported  decisions  are 
of  the  highest  authority ;  and  that  a  principle  of  law  once  estab- 
lished by  one  of  those  decisions,  is,  as  a  general  rule,  conclusive 
upon  the  inferior  jurisdictions,  until  either  reversed  or  modified 
by  the  same  tribunal,  or  by  the  paramount  authority  of  the 
federal  court  of  appeal,  in  cases  where  that  jurisdiction  may  be 
invoked — see  Palmer  v.  Lawrence,  1  Seld.  889 ;  and  this  is  the 
case,  even  where  the  judgment  so  pronounced  appears  to  have 
been  arrived  at,  by  a  process  which  the  court  below  may  consi- 
der in  itself  unsatisfactory.  See  Oakley  v.  Aspinwall,  1  Duer ; 
10  L.  O.  79,  by  the  majority  of  the  court.  See  however  the  dis- 
senting opinion  of  Bosworth,  J.,  in  which  the  contrary  doctrine  is 
advocated  in  great  detail  and  with  great  force.  The  above  propo- 
sition is,  as  a  general  rule,  incontestable.  It  is  not,  however, 
without  exceptions  in  a  modified  degree.  Thus  in  Wright  v. 
Douglass,  10  Barb.  97,  where,  on  the  new  trial  of  the  cause,  new 
evidence  was  introduced,  which  removed  the  principal  ground 
of  the  reversal  of  their  former  adjudication  by  the  Court  of  Ap- 
peals, the  Supreme  Court  regarded  itself  at  liberty,  on  such  new 
evidence,  to  declare  the  same  judgment  it  had  formerly  rendered. 
In  NicholsonY.  Leavitt,  4  Sandf.  253,  9  L.  0. 105,  the  general  term 
of  the  Superior  Court  in  like  manner  refused  to  be  bound  by  the 
opinion  delivered  by  the  presiding  judge  of  the  Court  of  Appeals 
in  Barney  v.  Griffin,  2  Comst.  365,  on  the  ground  that  it  did  not 
appear  that  the  other  judges  of  that  court  concurred  in  the  views 
there  laid  down  ;  and,  in  a  recent  case  of  Boiven  v.  Newell,  as  yet 
unreported,  the  same  tribunal  has  reasserted  a  similar  independ- 
ence, and  even  reaffirmed  its  previous  conclusions  on  a  point  of 
commercial  law,  in  opposition  to  the  view  taken  by  the  Court  of 
Appeals,  on  the  ground  that  the  authorities  in  support  of  that  view, 
though  apparently  passed  upon,  had  not  in  fact  been  distinctly 
brought  to  the  notice  of  the  latter  tribunal.  In  Whitney  v. 
Knows,  however,  11  Barb.  198,  a  less  bold  view  was  taken  by 
the  special  term  of  the  Supreme  Court,  and  the  decision  in  Grif- 
fin v.  Barney  was  looked  upon  as  a  controlling  authority. 

The  court  in  question  occupies  the  place  and  exercises  the 
powers  of  the  Court  of  Errors  under  the  old  system.  The  pro- 
visions on  its  original  creation  will  be  found  in  article  (J  of 
the  constitution  of  1816,  and  also  in  article  2  of  the  Judiciary 
Act,  laws  of  1847,  c.  280.  It  consists  of  eight  judges  —  four 
elected   by  the  electors  of  the  State,  one  at  the  expiration  of 


IQ  *  COURT  OF  APPEALS. 

every  two  successive  years,  and  four  selected  from  the  justices 
of  the  Supreme  Court;  the  judge  of  the  former  class  having  the 
shortest  time  to  serve,  being,  from  time  to  time,  the  chief  judge 
ex  officio.  Its  sittings  were  at  first  intended  to  be  migratory, 
and  were  held  in  turn  in  each  of  the  different  judicial  districts; 
but,  by  section  18  of  the  Code  of  1851,  they  are  now  perma- 
nently fixed  for  the  future  at  Albany,  where  four  terms  are  to 
be  held  every  year,  at  the  periods  therein  specified,  with  a 
power  to  appoint  additional  terms  when  required  by  the  public 
interest. 

The  following  are  the  provisions  of  the  Code,  as  last  amend- 
ed, on  the  subject  of  the  important  jurisdiction  exercisable  by 
this  high  tribunal : 

§  11.  The  Court  of  Appeals  shall  have  exclusive  jurisdiction  to  review, 
upon  appeal,  every  actual  determination  hereafter  made  at  a  general 
term,  by  the  Supreme  Court,  or  by  the  Superior  Court  of  the  city  of  New- 
York,  or  the  Court  of  Common  Pleas  for  the  city  and  county  of  New 
York,  in  the  following  cases,  and  no  other  : 

1.  In  a  judgment  in  an  action  commenced  therein,  or  brought  there 
from  another  court;  and  upon  the  appeal  from  such  judgment,  to  re- 
view any  intermediate  order  involving  the  merits,  and  necessarily  affect- 
ing the  judgment. 

2.  In  an  order  affecting  a  substantial  right,  made  in  such  action,  when 
such  order  in  effect  determines  the  action,  and  prevents  a  judgment 
from  which  an  appeal  might  be  taken. 

3.  In  a  final  order  affecting  a  substantial  right,  made  in  a  special 
proceeding,  or  upon  a  summary  application,  in  an  action,  after  judg- 

ment. 

lint  sadi  appeal  shall  not  be  allowed  in  an  action  originally  com- 
menced in  a  court  of  a  justice  of  the  peace,  or  in  the  Marine  Court  of 
tin;  city  "!  New  Voik,  or  in  an  assistant-justices'  court  of  that  city,  or 
in  a  justice's  court  of  any  of  the  cities  of  this  State. 

B  l_\  The  Court  of  Appeals  may  reverse,  affirm,  or  modify  the  judg- 
or  order  appealed  from,  in  whole  or  in  part,  and  as  to  any  or  all 
,,f  the  partie  ;  and  its  judgment  shall  be  remitted  to  the  court  below, 
t,,  |,.-  lci  or  ding  to  law. 

On  reference  to  the  corresponding  section  in  the  measure  of 
a  it  uin  be  seen  that  the  reoent  amendments  materially  ex- 
tend the  exercised  by  this  court,  the  whole 
of  subdivision  2  being  entirely  now. 


COURT  OF  APPEALS.  17 

In  the  Code  of  1851,  a  fourth  subdivision  was  added,  by 
which  an  appeal  lay  to  this  court  in  an  order  granting  a  new 
trial. 

The  latter  provision  was  probably  inserted  in  consequence 
of  the  decisions  in  Duane  v.  The  Northern  Railroad  Company,  3 
Comst.  545,  4  How.  364,  3  C.  R.  72  ;  Lansing  v.  Russell,  2  Comst. 
563, 4  How.  213  ;  and  Tilley  v.  Phillips,  1  Comst.  610,  3  How.  364, 
1  C.  R.  Ill :  in  all  of  which  it  was  held  that  orders  of  this  na- 
ture were  not  proper  subjects  for  the  interference  of  the  appel- 
late tribunal;  both  because  they  could  not  be  held  to  come 
within  the  description  of  "a  final  determination  of  the  rights  of 
the  parties  in  the  action,"  the  definition  of  a  judgment  in  section 
245,  and  also  inasmuch  as  they  were  in  their  nature  matters 
addressed  to  the  discretion  of  the  court  below,  with  the  exer- 
cise of  which  discretion  the  higher  tribunals  have  hitherto;  as  a 
general  rule,  always  refused  to  interfere.  On  the  recent  amend- 
ment these  views  have  again  prevailed,  the  authority  of  the 
above  cases  is  reestablished,  and  the  jurisdiction  of  this  court 
is  restored  to  its  former  consistency,  by  the  exclusion  of  all 
discussions  on  questions  of  fact,  except  only  as  subsidiary  to 
questions  of  law.  See  however  this  subject  further  considered 
under  the  head  of  Appeals,  and  the  recent  measure,  Laws  of 
1854,  c.  317,  there  cited. 

It  will  be  observed  that,  by  this  amendment,  the  Municipal 
Court  of  Brooklyn,  ranked  with  justices'  courts  in  the  Code  of 
1849.  is  no  longer  to  be  looked  upon  as  a  court  of  inferior 
jurisdiction,  but  as  standing,  for  the  future,  in  regard  to  the 
review  of  its  decisions,  on  the  same  level  as  other  city  and  county 
courts. 

The  amendment  effected  in  section  14,  by  which,  in  the  event 
of  five  judges  not  concurring  in  the  judgment  on  any  case  sub- 
mitted to  the  court,  that  case  is,  in  every  instance,  to  be  reheard, 
and  that,  twice  in  the  event  of  a  second  disagreement,  before 
judgment  of  affirmance  is  given  in  consequence  of  the  members 
of  the  court  being  equally  divided,  is  an  important  change  from 
the  Code  of  1849,  under  which,  on  such  an  event  occurring,  the 
judgment  of  the  court  below  was  affirmed,  as  of  course,  unless 
a  rehearing  was  specially  ordered.  This  provision  has  since 
been  acted  upon,  and  the  judgment  of  the  court  below  affirmed, 
after  an  equal  division  on  three  successive  arguments,  in  Moss  v. 
Averill,  Court  of  Appeals,  13  July,  1853.  Of  course  an  affirm- 
2 


IQ  COURT  OF  APPEALS. 

ance  of  this  nature  only  settles  the  point  at  issue  as  regards 
that  particular  case,  and  leaves  it  wholly  open  for  renewed  dis- 
cussion as  bearing  upon  the  rights  of  other  parties. 

The  question  raised  and  decided  in  Oakley  v.  Aspinwall,  3 
Comst.  -647,  9  L.  0.  45,  as  to  the  effect  of  a  judge  taking  part 
in  the  proceedings,  when  under  disqualification  on  the  ground 
of  relationship,  will  be  borne  in  mind.  A  serious  difficulty  was 
raised  in  the  same  case,  as  to  whether  this  court  could  be  held 
at  all  by  a  less  number  than  by  the  whole  of  the  eight  judges. 
The  proposition  that  it  could  be  so  held  was,  however,  decided 
in  the  affirmative  by  a  majority  of  six;  which  majority  also  held 
that  one,  consisting  of  four  judges  out  of  seven,  was  competent  to 
make  an  order  upon  motion,  but  declined  to  give  any  opinion 
upon  the  further  question  as  to  whether  such  a  majority  were 
competent  to  pronounce  a  judgment.  It  seems  clear  upon  the 
face  of  the  measure  that  a  majority  of  four  only  would  not  pos- 
sess adequate  jurisdiction  in  this  last  respect,  inasmuch  as,  by 
the  express  provisions  of  sec.  14,  a  concurrence  of  five  judges  is 
necessary  for  that  purpose. 

When  judgment  of  affirmance  is  pronounced  in  open  court, 
without  any  public  expression  of  dissent  on  the  part  of  any  of 
its  members,  it  would  seem  that  it  is  not  competent  for  the  par- 
ties to  go  behind  that  judgment,  and  to  apply  for  a  rehearing,  on 
any  allegation  that,  in  their  consultations  out  of  court,  the 
judges  were  equally  divided  in  opinion.  The  public  act  of  the 
court,  in  ordering  such  affirmance,  is  conclusive,  and  cannot  be 
gone  behind  or  impeached  on  any  private  grounds.  Mason  v. 
Jones,  3  Comst.  375;  5  How.  118;  3  C.  R.  164.  Nor  can  any 
allegations  "I'  that  nature  be  taken  into  consideration  by  the 
inferior  tribunal  whose  decision  has  been  reviewed,  when  the 
question  comes  on  afresh  under  the  remittitur.  Oakley  v.  Aspin- 
wall,  LOL.  0.  79;  1  Duer,  I. 

Where  two  <>r  more  points  are  discussed  in  the  opinions  de- 
livered, and  the  determinati >f  either  in  the  manner  there 

indicated  would  authorize  the  judgmenl  pronounced,  the  judges 
concurring  in  the  judgment  must  1"'  regarded  as  concurring  in 
ill.,  e  opinions  upon  the  points  discussed,  unless  some  dissent  is 
expressed,  or  the  circumstances  necessarily  Lead  to  a  different 
conclusion.   James  v.  /'<<//> nf  ^  Seld.  '.». 

Tii.-.  affirmance  of  ■■>.  judgment  l>y  default,  and  not  upon  a 
ing  on  the  merits,  decides  nothing  as  regards  future  adju- 


SUPREME  COURT.  19 

dications  under  the  same  circumstances.    Watson  v.  Husson,  1 
Duer,  242. 

See  these  subjects  further  considered  in  a  subsequent  portion 
of  the  work,  under  the  head  of  Appeals  to  the  Court  in  question. 


CHAPTER   IV. 

OF    THE     SUPREME    COURT. 

§   11.    Supreme   Court,  Power  of. 

The  next  tribunal  which  presents  itself  for  consideration  is 
the  Supreme  Court,  a  court  whose  powers  are  more  extensive 
and  more  widely  diffused  than  those  of  any  other  within  the 
State,  and  embrace  every  species  of  cause,  and  every  variety  of 
jurisdiction;  with  authority  also  to  remove  cases  pending  in 
tribunals  of  inferior  jurisdiction  within  its  own  cognizance,  by 
certiorari.  Its  common  law  authority,  analogous  to  that  pos- 
sessed by  the  Court  of  King's  Bench  in  England,  has  been  ex- 
ercised from  time  immemorial,  or  rather,  to  speak  more  closely, 
from  the  original  establishment  of  the  English  common  law  in 
this  country.  (See  on  this  subject  Kanouse  v.  Martin,  3  Sandf. 
657,  per  Duer,  J.)  Its  equitable  jurisdiction  is  of  more  recent 
origin,  being  first  indicated  by  the  Constitution  of  1846,  art.  6, 
sec.  3,  and  afterwards  expressly  conferred  by  the  Judiciary  Act, 
laws  of  1847,  c.  280;  and  in  particular  by  section  16  of  that 
measure.  It  is  in  effect  coextensive  with  and  in  substitution 
for  that  of  the  former  Courts  of  Chancery  thereby  abolished. 
Mason  v.  Jones,  1  C.  K.  (1ST.  S.)  335 ;  Conro  v.  Port  Henry  Iron 
Company,  12  Barb.  27 ;  Lovett  v.  German  Reformed  Church,  12 
Barb.  67 ;  Bailey  v.  Ryder,  Court  of  Appeals,  30th  December, 
1852 ;  Suydayn  v.  Holden,  Court  of  Appeals,  7th  October, 
1853 ;  People  v.  Porter,  1  Duer,  709 ;  11  L.  0.  228,  (as  to  the 
custody  of  infants,)  and  numerous  other  cases.  See  also  gene- 
rally as  to  the  jurisdiction  of  this  tribunal,  as  reorganized  under 
the  measure  last  referred  to,  Spicer  v.  Norton,  13  Barb.  542.  The 
jurisdiction  of  this,  and  of  all  other  tribunals  of  general  powers. 


20  SUPREME  COURT. 

is  always  to  be  presumed  till  the  contrary  appears.    Wright  v. 
Douglass,  10  Barb.  97. 

Besides  their  authority  in  civil  cases,  the  justices  of  this 
court  exercise  criminal  jurisdiction  in  the  Courts  of  Oyer  and 
Terminer,  as  defined  by  art.  5  of  the  measure  last  referred  to. 
See  also  the  recent  act  on  this  subject,  Laws  of  1854,  c.  73,  p. 

151. 

The  mode  of  election,  the  classification,  and  the  delegation  of 
four  of  the  judges  of  this  court,  to  sit  from  time  to  time  in  the 
Court  of  Appeals,  their  distribution  in  districts  throughout  the 
State,  and  the  provisions  as  to  the  presiding  judge  from  time  to 
time  in  each  of  those  districts,  remain  as  they  were  previously 
settled  by  the  Revised  Statutes  and  by  the  Judiciary  Act.  The 
Code  effects  no  alteration  whatever  in  these  respects. 


§  12.   General  and  Special  Terms. 

The  distinction  between  the  general  and  special  terms  of  this 
and  the  other  tribunals  of  higher  jurisdiction,  remains  also  un- 
touched by  the  recent  measures  of  amendment ;  though,  in  some 
few  respects,  the  matters  falling  within  the  peculiar  attributes  of 
each  of  those  branches  of  the  court  have  been  made  the  subject 
of  mutation.  The  special  term,  or  the  Circuit  Court,  in  which 
a  single  judge  presides,  remains,  as  before,  that  branch  of  the 
aggregate  tribunal  to  which  belongs  the  consideration  in  the 
first  instance  of  every  question  brought  before  it,  with  the  few 
exceptions  about  to  be  noticed ;  the  Circuit  Court  taking  pecu- 
liar cognizance  of  those  cases  in  which  the  trial  takes  place  by 
jury,  and  the  special  term  of  those  which  are  triable  by  the 
court.  The  functions  of  the  general  term  are,  on  the  contrary, 
for  the  most  part,  strictly  appellate;  and  embrace  the  revision 
of  all  decisions  of  the  single  judge  on  questions  of  law,  to  the 
exclusion,  under  ordinary  circumstances,  of  questions  of  fact; 
and  likewise  the  review  of  the  judgments  of  subordinate  courts. 
In  Certai  ,    however,  and   in   particular  on  appeals  from 

orders  involving  the  granting  or  refusing  of  a  new  trial,  ques- 
tions of  fact  are  entertainable  by  this  branch  of  the  court.  The 
general  term  DO  •  lea  also  a  special  jurisdiction  in  reference  to 
the  admission  of  attorneys  and  counsel,  and  to  the  control  of 
the  conduct  of  those  ofliecrs  when  admitted ;  and  any  question 


SUPREME  COURT.  21 

submitted  for  the  opinion  of  the  court,  under  the  peculiar  pro- 
vions  of  sec.  372  of  the  Code,  is  also  originally  cognizable  by  it. 
The  concurrence  of  a  majority  of  the  judges  holding  a  general 
term  is,  by  sec.  19  of  the  Code,  made  indispensable  to  the 
validity  of  its  decisions,  and,  in  event  of  their  non-concurrence, 
the  case  is  on  all  occasions  to  be  reheard.  It  will  be  seen  that, 
by  sec.  24  of  the  Code,  the  fullest  powers  of  adjournment  are 
given  with  reference  to  the  terms  of  the  Court,  both  general  and 
special,  including  the  Circuit  Court  and  Courts  of  Oyer  and 
Terminer.  See  as  to  the  powers  of  judges  specially  appointed 
to  hold  a  general  term,  and  as  to  the  presiding  justice,  The 
People  v.  Hicks,  15  Barb.  153. 


§  13.  Chamber  Business — Powers  of  County  Judges. 

Besides  the  hearing  of  causes  and  appeals,  and  of  those  more 
important  interlocutory  proceedings  in  each,  which  involvepoints 
vital  to  the  decision  of  the  controversy  between  the^arties ; 
occasions  on  which  it  becomes  necessary  to  obtain  the  direction  or 
authority  of  the  court,  on  matters  of  minor  importance,  are,  during 
the  progress  of  a  suit,  of  almost  daily  occurrence.  To  provide  for 
these  matters,  and  to  prevent  the  general  calendars  of  the  court 
from  being  overburthened  by  their  constant  recurrence,  a  sub- 
ordinate, but  most  important  jurisdiction  is  exercised  by  the 
individual  judges  of  each  of  the  higher  tribunals,  at  their  cham- 
bers, or  otherwise  out  of  court.  To  enter  into  details  on  the 
different  subjects  embraced  within  these  attributes,  would  at  pre- 
sent be  premature  ;  the  only  remark  necessary  at  this  juncture 
is,  that,  to  a  certain  extent,  and  for  certain  purposes,  that  branch 
of  jurisdiction  is,  as  before  noticed,  capable  of  delegation,  and 
may  be  exercised,  ex  officio,  by  the  different  county  judges  through- 
out the  State,  each  within  the  limits  of  his  peculiar  jurisdiction, 
but  within  those  limits  only.  See  Code,  sec.  401,  402,  403  and 
405.  The  powers  so  exercised  are  substantially  the  same  as  those 
possessed  under  the  old  practice  by  the  judges  in  question,  and 
also  by  the  officers  styled  "Supreme  Court  commissioners,"  and 
are  conferred  by  the  Revised  Statutes,  in  connection  with  sec. 
29  of  the  Judiciary  Act.  See  also  Graham's  Practice,  chap,  ii.,  sec. 
2.  The  jurisdiction  of  these  officers  being,  however, limited,  the 
presumption,  as  in  all  similar  cases,  will  always  be  against,  rather 


22  SUPREME  COURT. 

than  in  favor  of  their  power  to  exercise  it,  wherever  that  power 
is  open  to  reasonable  doubt  on  any  point,  either  technical  or 
affecting  the  merits.  See  The  People  ex  rel.  Williams  v.  Hulbert, 
5  How.  446 ;  1  C.  K.  (N.  S.)  75  ;  9  L.  0.  245.  Although,  however, 
nothing  can  be  presumed  in  favor  of  the  jurisdiction  of  such 
officers  in  these  matters,  nothing  will,  on  the  contrary,  be  pre- 
sumed against  it,  in  the  absence  of  actual  proof.  Barnes  v.  Har- 
ris, 4  Comst.  374. 

•It  is  clear  from  the  terms  of  the  Code  that  the  county  judge 
has  no  power  to  act  at  all  without  his  county ;  and,  in  Eddy  v. 
Howlett,  2  C.  R.  76,  it  was  held  that  the  expression  "  his  county" 
means,  as  regards  the  granting  of  orders,  not  the  county  within 
which  the  judge  himself  resides,  but  the  county  within  which 
the  action  is  triable.  See  also  Chnbbuck  v.  Morrison,  6  How.  367. 
A  contrary  view  is  however  taken  in  the  case  of  Peebles  v.  Rogers, 
5  How.  208,  3  C.  R.  213,  where  an  order,  extending  the  time  to 
answer,  granted  in  the  county  of  the  defendant's  residence  by  the 
county  judge  of  that  county,  the  venue  having  been  fixed  in  that 
of  the  plaintiff,  was  nevertheless  sustained  as  valid  under  the 
general  powers  of  the  officer  in  question  under  the  old  practice, 
as  saved  by  sec.  403. 

The  general  powers  of  county  judges  in  this  respect,  enlarged 
in  some  degree  by  the  Code,  (particularly  in  reference  to  the 
granting  of  injunctions,  and  to  the  proceedings  supplementary 
to  execution,)  remain,  where  such  has  not  been  the  case,  substan- 
tially as  they  were  before,  under  the  then  "existing  practice," 
and  are  neither  affected  nor  enlarged  by  that  measure.  Merritt 
v.  Slocum,  1  C.  R.  68 ;  3  How,  309.  It  was  accordingly  held  in 
that  case  that  the  powers  of  a  county  judge  did  not  extend  to 
the  hearing  and  deciding  of  motions,  as  such,  in  actions  pending 
in  the  Supreme  Court,  but  merely  to  the  granting  of  orders 
obtainable  as  of  course  and  without  notice.  A  general  stay  of 
proceedings  until  after  the  hearing  of  a  motion,  granted  by  an 
officer  of  this  description,  without  notice  to  the  opposite  party, 
le  in  Schenck  v.  McKie,  4  How.  246,  3  C.  R.  24, 
as  void  for  want  of  jurisdiction.  See  generally  as  to  the  power 
of  tli is  officer,  Cumm, i  v.  Hitchins,  9  Barb.  378;  Otis  v.  Spencer, 
8  How.  171  ;  Sale  v.  Lawson,  I  Sandf.  718,  the  details  of  which 
cases  will  be  considered  bereafter. 

In  the  Bank  of  Lansingburgh  \ .  McE  /<,  7  !  [ow.  300,  the  fact  that 
the  county  judge  was  related  to  the  president  of  the  plaintiffs 


SUPREME  COURT.  23 

bank,  and  was  a  stockholder  therein,  was  held  not  to  be  such  a 
disqualification  as  to  prevent  him  from  acting  ministerially  in 
granting  an  attachment.  In  Griffin  v.  Griffith,  6  How.  428,  it 
was  considered  by  Harris,  J.,  that  the  act  of  the  Legislature,  Laws 
of  1847,  p.  642,  conferring  upon  the  Eecorder  of  Troy  the  powers 
of  a  county  judge  in  that  city,  was  unconstitutional,  and  all  his 
acts  under  those  powers  void. 


§  14.  Powers  of  Judges  out  of  Court. 

It  will  be  observed  in  reference  to  sec.  401,  that,  in  the  first 
district,  the  powers  of  judges  at  chambers  or  out  of  court  are 
greatly  extended,  and  are  in  fact  sufficiently  large  to  include  the 
granting  of  interlocutory  orders  of  every  description,  whether 
upon  or  without  notice,  with  the  single  exception  of  new  trials 
upon  the  merits.  The  powers  of  the  judges  out  of  court  do  not, 
however,  extend  to  the  granting  of  judgment  under  any  circum- 
stances, except  in  the  single  instance  of  an  application  under  sec. 
247.  In  all  other  cases  the  motion  must  be  made  to  the  court 
sitting  as  such,  and  cannot  be  otherwise  entertained.  Aymar  v. 
Chase,  1  C.  E.  (N.  S.)  830;  12  Barb.  301. 

Although  the  exercise  of  the  office  of  judge  on  the  part  of 
inferior  officers,  by  delegation,  is  confined  within  strict  local 
limits,  the  powers  of  the  judges  themselves  are  unrestricted. 
Constitution,  art.  6,  sec.  6.  Any  judge  of  the  Supreme  Court 
is,  therefore,  competent  to  act  in  the  place  of  any  other,  in  the 
event  of  his  inabilit}'  to  perform  the  peculiar  duties  assigned  to 
him,  (sec.  26;)  and  every  judge  moreover  possesses  the  inherent 
power  to  make  orders  of  course  in  any  suit  whatever,  pending 
in  any  part  of  the  State,  irrespective  of  the  district  in  which  he 
for  the  time  being  exercises  his  functions ;  and  orders  so  made 
by  him  are  equally  binding  on  all  parties,  as  they  would  have 
been  if  made  by  a  judge  of  that  particular  district.  By  sec. 
401  a  restriction  is,  however,  imposed  upon  these  powers,  as 
regards  the  making  of  orders  upon  notice,  which  can  only  be 
applied  for  in  the  district  within  which  the  action  is  triable,  or, 
where  the  county  fixed  upon  for  the  trial  is  a  border  county, 
then  in  some  county  in  the  next  district,  immediately  adjoining 
thereto,  the  first  district'  excepted,  in  which,  since  the  last  amend- 
ment of  the  Code,  motions  cannot  be  made  in  actions  triable 


24:  SUPREME  COURT. 

elsewhere.  Motions  in  actions  triable  in  that  district  must  on 
the  contrary  be  made  therein,  and  cannot  be  heard  in  any  ad- 
joining county ;  and  any  proceeding  commenced  before  one  of 
its  judges  may,  under  the  especial  provisions  of  section  27,  be 
continued  before  another  with  the  same  effect. 


§  15.   Courts,  Arrangements  as  to. 

Although  the  general  jurisdiction  of  the  judges  and  officers  of 
the  Supreme  Court  remains  unaltered  by  the  Code,  the  previous 
arrangements  as  to  the  courts  to  be  held  by  them  are  repealed, 
and  fresh  provisions  substituted  by  title  III.  of  part  I.  of  that 
measure.  By  section  18  it  is  prescribed  that  at  least  four  gene- 
ral terms,  and  more  if  necessary,  shall  be  held  annually  in  each 
judicial  district,  at  such  times  and  places  as  a  majority  of  the 
judges  of  such  district  shall  appoint ;  and,  by  section  20,  it  is 
made  imperative  that  at  least  two  Circuit  Courts  and  Courts  of 
Oyer  and  Terminer,  and  one  special  term,  shall  be  held  yearly 
in  every  county  throughout  the  State,  (Fulton  and  Hamilton 
being  considered  as  only  one  county  for  such  purpose,)  with 
similar  powers  to  the  judges  to  appoint  additional  terms  for 
such  purposes.  The  times  and  places  for  holding  such  terms 
were  originally  fixed  by  the  governor,  and  subsequently  by  the 
judges,  and  are  for  the  future  to  be  from  time  to  time  made  the 
subject  of  special  appointment  by  the  latter;  such  appointment 
to  be  made  by  them  at  least  one  month  before  the  expiration 
of  every  second  year,  and  to  be  for  the  two  years  commencing 
on  the  first  of  January  then  next  following.  The  appointment 
of  those  terms  for  the  two  years  commencing  on  the  first  of 
.January,  1854,  will  be  found  at  the  end  of  the  volume. 

Whenever  the  justices  of  any  one  particular  district  are  under 
personal  disqualification  in  respect  of  any  cause  pending  therein, 
the  court,  under  the  powers  of  c.  15  of  the  Laws  of  1850,  pos- 
sesses the  power  of  removing  that  cause  into  any  other  adjoin- 
in  g  district. 

In  addition  to  the  above  regular  terms  and  circuits,  the  Gov- 
ernor of  the  State  possesses  also,  under  s.  23,  the  power  of  mak- 
ing additional  appointments  for  such  purpose,  the  same  to  be 
published  in  the  State  paper,  as  prescribed  by  sec.  25.  By  c.  1 
of  Laws  of  1850,  and  sec,  469  of  the  Code,  as  last  amended,  his 


SUPREME  COURT.  25 

powers  in  this  respect  are  greatly  enlarged,  and  he  is  enabled  to 
provide  for  the  case  of  a  term  being  in  danger  of  failing,  and 
also  for  that  of  any  one  branch  of  the  court  being  overburden- 
ed with  business ;  those  powers  in  the  last  instance  extending 
to  the  assignment  of  other  judges  for  the  purpose  of  disposing 
of  the  arrears. 

By  c.  374  of  the  Laws  of  1852,  power  is  given  to  the  chief 
judge  of  the  Court  of  Appeals,  on  the  application  of  the  presid- 
ing judge  of  the  first  district,  to  appoint  additional  sittings  to  be 
held  therein,  and  to  assign  some  justice  of  the  Supreme  Court  to 
hold  such  sittings,  whose  duty  it  shall  be  to  do  so.  The  same 
measure  also  provides  for  the  appointment  of  an  additional  judge 
for  the  same  district,  which  provision  has  since  been  acted  upon 
at  the  last  general  election. 

§  16.    Appeals,  S^c. 

As  before  stated,  the  appeal  from  the  decisions  of  the  general 
term  of  this  court,  lies  to  the  Court  of  Appeals  in  all  cases,  with 
the  single  exception  of  causes  originally  commenced  in  a  justices' 
or  other  court  of  lowest  jurisdiction,  in  which  this  court  is  the 
ultimate  tribunal.  The  decisions  of  the  Surrogate's  Courts,  and 
also  of  all  those  subsequently  enumerated  in  this  portion  of  the 
work,  with  the  exception  of  those  of  the  Superior  Court  and 
Court  of  Common  Pleas  of  the  city  of  New  York,  are  likewise 
reviewable  by  it  in  its  appellate  capacity;  the  appeal  lying  in 
the  first  instance  from  the  decisions  of  the  surrogate,  and  also 
from  those  of  the  county  and  municipal  courts ;  and  in  the 
second,  after  a  previous  review  by  the  former  of  the  two  last 
tribunals,  from  the  justices'  and  other  courts  of  lowest  juris- 
diction. 

§  17.  Rules  of. 

The  practice  of  this  court,  and  of  the  New  York  and  county 
courts,  is  regulated  by  general  rules  made  by  the  judges  under 
the  provisions  of  sec.  470  of  the  Code,  and  which  are  henceforth 
to  be  revised  every  two  years,  under  the  last  amendment  of 
that  section.  The  first  of  these  revisions  took  place  in  August, 
1852,  and  the  rules  as  then  settled  are  now  in  force.  They  are 
binding  not  merely  upon  the  Supreme  Court,  but  also  upon  all 


26  COUNTY  COURTS. 

other  tribunals  of  analogous  jurisdiction,  and,  as  such,  will  form 
the  subjects  of  continual  reference  throughout  the  succeeding 
pages.  It  will  be  necessary  to  bear  in  mind  that,  on  the  last 
revision,  the  numbers  of  those  rules  were,  for  the  most  part, 
slightly  changed.  Attention  to  this  circumstance  will  prevent 
much  of  the  embarrassment  that  might  otherwise  arise  in  rela- 
tion to  the  citations  of  the  same  provisions,  as  they  stood  pre- 
vious to  that  revision,  in  the  decided  cases  prior  to  August,  1852. 


CHAPTER    V. 

OF    THE    COUNTY    COURTS. 
§   18.    Jurisdiction  and   Powe)  of. 

In  strictness  these  courts  are  of  inferior  authority  and  juris- 
diction to  those  mentioned  in  the  next  division.  The  definition 
of  that  jurisdiction  is,  however,  to  a  certain  extent,  a  definition  of 
that  of  the  New  York  tribunals  also;  and  the  operation  of  county 
courts  is  of  course  of  far  wider  scope,  extending,  as  it  now  ex- 
tends, throughout  the  whole  of  the  State.  It  has,  on  the  above 
grounds,  been  thought  better  to  follow  the  order  of  arrangement 
adopted  in  the  Code  itself,  and  to  consider  the  peculiarities  and 
powers  of  these  courts  in  the  first  instance,- before  treating  of 
those  of  the  metropolitan  district. 

The  jurisdiction  of  these  courts  is  of  a  special  and  statutory 
nature,  and  is  thus  expressly  defined  by  sec.  30  of  the  Code  as 
last  amended: 

The  County  Court  has  jurisdiction  in  the  following  special 
l,  but  has  no  original  civil  jurisdiction  except  in  such  cases: 
I.  Civil  actions,  in  which  the  relief  demanded  is  the  recovery  of  a 
.sum  of  money  not  exceeding  five  hundred  dollars,  or  the  recovery  of 
the  dob  e  ion  of  personal  property  not  exceeding  in  value  five  hundred 
dollar  .  and  in  which  all  the  defendants  are  residents  of  the  county  in 
which  tli"  action  is  brought, at  the  time  of  its  commencement:  subject 
to  Ijie  right  of  the  Supreme  Court,  upon  special  motion  for  good  cause 
shown,  to  remove  any  such  action  to  the  Supreme  Court  before  trial. 


COUNTY  COURTS.  27 

2.  The  exclusive  power  to  review,  in  the  first  instance,  a  judgment 
rendered  in  a  civil  action  by  a  justice's  court  in  the  county,  or  by  a 
justices'  court  in  cities,  and  to  affirm,  reverse,  or  modify  such  judgment. 

3.  The  foreclosure  or  satisfaction  of  a  mortgage,  and  the  sale  of 
mortgaged  premises  situated  within  the  county,  and  the  collection  of 
any  deficiency  on  the  mortgage  remaining  unpaid,  after  the  sale  of  the 
mortgaged  premises. 

4.  The  partition  of  real  property  situated  within  the  county. 

5.  The  admeasurement  of  dower  in  land  situated  within  the  county. 

6.  The  sale,  mortgage,  or  other  disposition  of  the  real  property  situ- 
ated within  the  county,  of  an  infant  or  person  of  unsound  mind. 

7.  To  compel  the  specific  performance,  by  an  infant  heir,  or  other 
person,  of  a  contract  made  by  a  party  who  shall  have  died  before  the 
performance  thereof. 

8.  The  care  and  custody  of  the  person  and  estate  of  a  lunatic  or 
person  of  unsound  mind,  or  an  habitual  drunkard,  residing  within  the 
county. 

9.  The  mortgage  or  sale  of  the  real  property  situated  within  the 
county,  of  a  religious  corporation,  and  the  disposition  of  the  proceeds 
thereof. 

10.  To  exercise  the  power  and  authority  heretofore  vested  in  such 
Courts  of  Common  Pleas,  over  judgments  rendered  by  justices  of  the 
peace,  transcripts  of  which  have  been  filed  in  the  offices  of  the  county 
clerks  in  such  counties. 

11.  To  exercise  all  the  powers  and  jurisdiction  conferred  by  statute 
upon  the  late  Courts  of  Common  Pleas  of  the  county,  or  the  judges  or 
any  judge  thereof,  respecting  ferries,  fisheries,  turnpike -roads,  wrecks, 
physicians,  habitual  drunkards,  imprisoned,  insolvent,  absent,  concealed 
or  non-resident  debtors,  jail-liberties,  the  removal  of  occupants  from 
State  lands,  the  laying  out  of  railroads  through  Indian  lands,  and  upon 
appeal  from  the  determination  of  commissioners  of  highways,  and  all 
other  powers  and  jurisdiction  conferred  by  statute,  which  has  not  been 
repealed,  on  the  late  Court  of  Common  Pleas  of  the  county,  or  on  the 
County  Court,  since  the  late  Courts  of  Common  Pleas  were  abolished, 
except  in  the  trial  and  determination  of  civil  actions ;  and  to  prescribe 
the  manner  of  exercising  such  jurisdiction,  when  the  provisions  of  any 
statute  are  inconsistent  with  the  organization  of  the  County  Court. 

12.  To  remit  fines  and  forfeited  recognizances,  in  the  same  cases,  and 
like  manner  as  such  power  was  given  by  law  to  Courts  of  Common  Pleas. 
But  the  first  subdivision  of  this  section  shall  not  apply  to  the  County 
Court  of  the  counties  of  Kings  and  Erie. 

13.  To  grant  new  trials,  or  affirm,  modify,  or  reverse  judgments  in 
actions  tried  in  such  court,  upon  exceptions  or  case  made,  subject  to  an 


28  COUNTY  COURTS. 

appeal  to  the  Supreme  Court.  But  any  action  or  proceeding  pending 
in  the  County  Court,  in  -which  the  county  judge  is  for  any  cause  inca- 
pable of  acting,  may  be  transferred  by  the  County  Court  to  the  Supreme 
Court,  and  thereupon  the  papers  therein,  on  file  in  the  County  Court, 
shall  be  transmitted  to  the  Supreme  Court  in  the  same  district,  -which 
shall  thenceforth  have  jurisdiction  of  such  action  or  proceeding. 

In  the  Code  of  1851,  the  counties  of  Albany  and  Monroe  were 
likewise  included  in  the  exception  made  bj  subdivision  12.  The 
powers  of  transfer  to  the  Supreme  Court  of  causes  in  which  the 
county  judge  is  from  any  reason  incapable  of  acting,  are  like- 
wise new,  having  been  inserted  on  the  last  amendment.  An 
analogous  power  was,  however,  contained  in  the  Judiciary  Act, 
sec,  31.  In  Sheldon  v.  Albro,  8  How.  305,  it  was  held  that  an 
appeal  transferred  to  the  Supreme  Court  under  that  provision, 
was  to  be  heard  in  the  first  instance  at  special,  and  not  at  general 
term. 

It  will  be  seen  from  the  above  summary,  that,  though  limited 
in  terms,  the  original  jurisdiction  of  these  tribunals  is  wide  in 
its  scope,  and  extends  over  a  number  of  most  important  matters. 
The  extent  of  that  jurisdiction  has,  however,  been  somewhat 
doubted.  In  Griswold  v.  Sheldon,  4  Comst.  581, 1  C.  E.  (N.  S.) 
261,  an  opinion  was  expressed  by  Bronson,  C.  J.,  to  the  effect, 
that  the  statutory  provisions  giving  common  law  jurisdiction  to 
these  courts,  are  unconstitutional  and  void.  The  question  was 
not,  however,  actually  decided  in  that  case,  and  was  expressly 
stated  as  remaining  open  for  consideration,  should  it  be  ever 
brought  before  the  court.  In  Beecher  v.  Allen,  on  the  contrary, 
5  Barb.  109,  it  was  expressly  decided,  that  the  Legislature  had 
not  exceeded  its  powers  in  conferring  the  jurisdiction  in  ques- 
tion,  and  that  the  provisions  for  that  purpose  were  not  uncon- 
stitutional. The  constitutionality  of  the  statutory  provisions 
conferring  civil  jurisdiction  on  these  courts  was  also  generally 
maintained  in  Frees  v.  Ford,  2  Seld.  176,  1  C.  E.  (N.  S.)  413. 
Their  general  jurisdiction  is  also  admitted  without  question,  and 
their  general  rights  as  courts  of  record  to  grant  a  trial  by  jury 
maintained  in  Doyharsh  v.  JEnost  1  Seld.  681.  In  McAllister  v. 
Albion  Plank  Road  Convpanyi  11  Barb.  610,  it  was  held,  that  not- 
withstanding the  general  repealing  clause  in  sec.  29,  of  all  sta- 
tutes deli nin;'  the  jurisdiction  of  these  courts  in  conflict  with  the 
I  lode,  that  jurisdiction  still  subsisted  in  regard  to  special  statu- 


COUNTY  COURTS.  29 

tory  remedies.  See  also  Hosier  v.  Hilton,  15  Barb.  657 ;  and 
this  view  is  carried  out  by  subdivision  11  of  sec.  30,  as  it  now 
stands. 

The  jurisdiction  of  these  courts  being  of  a  limited  nature, 
every  fact  necessary  to  confer  it  must  be  clearly  shown  in  all 
cases.  See  TJie  People  ex  rel.  Williams  v.  Ilulbert,  5  How.  446; 
9  L.  O.  245,  1  C.  E.  (N.  S.)  75.  Nothing  can  be  presumed  in 
favor  of  such  j  urisdiction  without  actual  proof,  though,  on  the 
contrary,  nothing  will  be  presumed  against  it,  unless  actually 
shown.     Barnes  v.  Harris,  4  Comst.  374. 

It  must  be  borne  in  mind  that,  with  the  exception  of  their 
appellate  powers,  and  some  few  items  of  the  peculiar  statutory 
authority  formerly  vested  in  the  Courts  of  Common  Pleas,  and 
now  attributed  to  these  tribunals,  the  Supreme  Court  exercises 
an  equal,  or  rather  a  paramount  jurisdiction  over  the  same 
matters;  and,  in  the  event  of  any  conflict  with  that  jurisdiction, 
possesses  the  power  in  most  instances  of  removing  the  con- 
troversy within  its  own  cognizance,  by  means  of  certiorari,  pro- 
hibition, or  special  order  of  removal,  as  prescribed  in  subdivision 
1  of  the  section  last  cited. 

It  may  be  a  convenience  to  the  reader  simply  to  refer  to  the 
provisions  of  the  Eevised  Statutes,  in  reference  to  which  the 
special  powers  of  these  courts,  as  above  enumerated,  are  seve- 
rally exercisable,  though  of  course  without  entering  into  any 
discussion  on  those  subjects. 

The  statutory  provisions  respecting  foreclosure  will  be  found 
at  2  E.  S.  p.  191  to  194,  in  connection  with  the  jurisdiction  of 
the  Court  of  Chancery  as  then  exercisable. 

The  statute  law  on  the  subject  of  partition  is  contained  in 
title  III.,  chap.  V.,  of  part  III.  of  those  statutes,  2  E.  S.  316 
to  333. 

That  as  to  the  admeasurement  of  dower  will  be  found  in  title 
VII.  of  chap.  VIII.  of  the  same  part,  2  E.  S.  488  to  493. 

That  as  to  the  sale  or  other  disposition  of  the  real  estate  of 
infants,  and  the  specific  performance  of  contracts  by  infant  heirs, 
at  2  E.  S.  194  to  197. 

That  as  to  the  care  of  the  person,  and  the  disposition  of  the 
estate  of  persons  of  unsound  mind,  at  2  E.  S.  52  to  56. 

The  general  act  for  the  incorporation  of  religious  societies,  is 
that  of  5th  April,  1813.  Laws  of  1813,  c.  60.  Various  amend- 
ments of  that  act  have  since  taken  place,  and  various  local  acts 


30  COUNTY  COURTS. 

passed  by  the  Legislature,  which  will  be  found  in  vol.  3  of  the 
third  edition  of  the  Eevised  Statutes,  and  in  the  laws  of  the  dif- 
ferent years  since  that  edition  was  published. 

The  provisions  of  the  Eevised  Statutes  as  to  the  powers  of 
the  Courts  of  Common  Pleas  over  justices'  judgments  will  be 
found  at  2  R.  S.  245  to  249. 

The  statute  law  as  to  ferries,  at  1  E.  S.  526  to  528. 

That  as  to  fisheries,  at  1  E.  S.  687  to  690. 

As  to  turnpike  roads,  1  E.  S.  695  to  697. 

As  to  wrecks,  1  E.  S.  690  to  695. 

As  to  physicians,  1  E.  S.  452  to  456. 

As  to  habitual  drunkards,  2  E.  S.  52  to  56. 

(N.  B.  In  Re  Paterson,  4  How.  34,  it  was  held  that  an  habit- 
ual drunkard  may,  if  thought  proper,  be  authorized  by  order  to 
make  a  will,  without  notice  to  his  committee  or  next  of  kin.) 

That  as  to  imprisoned,  insolvent,  absent,  concealed,  or  non- 
resident debtors,  at  2  E.  S.  1  to  52,  i.  e.  in  chap.  Y.  of  part  II., 
title  I.  passim.     See  also  Act  of  April  26,  1831. 

As  to  the  liberties  of  jails,  2  E.  S.  432  to  437. 

As  to  removal  of  occupants  from  State  lands,  1  E.  S.  205  to 
208. 

As  to  the  laying  out  of  railroads  through  Indian  lands,  Laws 
of  1836,  c.  316. 

As  to  appeals  from  the  determination  of  commissioners  of 
highways,  1  E.  S.  518  to  521. 

The  general  jurisdiction  of  the  late  Courts  of  Common  Pleas 
will  be  found  laid  down  in  title  V.,chap.  I.,  part.  III.  of  the  Ee- 
vised Statutes,  2  E.  S.  208  to  218,  and  in  various  local  statutes, 
some  of  which  will  be  found  collected  in  vol.  2  of  the  third  edi- 
tion of  those  statutes,  page  273  to  293,  and  the  remainder  in  the 
laws  of  the  different  years  subsequent  to  the  publication  of  that 
edition. 

The  provisions  as  to  the  collection  and  remission  of  fines  and 
forfeited  ances,  are  contained  in  art.  II.,  title  VI.,  chap. 

VIII.,  part  III.  of  the  Revised  Statutes,  2  E.  S.  483  to  488. 

<  )n  reference  to  the  <  lodes  of  1848  and  1849,  it  will  be  seen 
that  the  jurisdiction  of  these  courts  is  most  materially  extended 
by  the  recent  amendments.  [n  the  first  place,  they  now  possess 
original  cognizance  of  actions  in  general,  instituted  for  the  re- 
covery of  either  money  or  property,  to  the  value  of  $500,  (but 
subject  to  the  controlling  powers  of  the  Supreme  Court,)  which, 


COUNTY  COURTS.  31 

under  the  former  measures,  did  not  come  within  the  scope  of 
their  jurisdiction.  The  local  exceptions  in  this  respect  with  refer- 
ence to  the  counties  of  Kings  and  Erie,  will,  however,  be  no- 
ticed; Albany  and  Monroe  were  likewise  excluded  under  the 
Code  of  1851.  In  the  second  place,  the  statutory  authorities, 
formerly  vested  in  the  Courts  of  Common  Pleas,  are  more  exten- 
sively attributed  to  them ;  and,  in  the  third,  by  subdivision  13 
as  it  now  stands,  the  full  powers  of  the  higher  Courts  of  Eecord, 
with  reference  to  the  review  of  their  own  decisions  on  case  or 
exceptions,  are,  for  the  first  time,  distinctly  given  to  them. 
They  thus  possess  within  themselves  all  the  usual  powers  of 
courts  of  record,  in  reference  to  the  decision  of  the  questions 
submitted  to  them ;  though,  of  course,  only  within  the  limits  of 
their  peculiar  jurisdiction,  and  subject,  in  all  cases  where  a 
ministerial  statute  authority  is  not  exercised,  to  the  control  of 
the  appellate  tribunal.  Their  proceedings  are  governed  by  the 
new  rules  of  the  Supreme  Court,  so  far  as  they  are  applicable. 
Sec.  470.  In  the  Codes  of  1848  and  1849,  the  sittings  of  this  class 
of  tribunals  were  called  and  treated  as  general  terms,  although 
held  by  only  one  judge.  In  the  present  measure,  however,  this 
nomenclature  is  abandoned,  and  it  will  be  seen  by  consulting 
section  31,  that  these  courts  are  always  open  for  the  transaction 
of  business  in  matters  which  are  not  litigated,  and  that  at  least 
two  terms,  and  as  many  more  as  the  judge  may  appoint,  are  to 
be  held  yearly  in  each  county,  for  the  trial  of  issues  of  law  and 
fact  in  the  ordinary  course,  at  periods  to  be  fixed  by  such  judge, 
and  to  be  advertised  for  at  least  four  weeks  in  the  State  and 
county  papers ;  with  power  for  the  designation  of  terms  to  be 
held  for  the  trial  of  issues  of  law  only,  or  of  those  proceedings 
at  which  no  jury  shall  be  required  to  attend. 

The  provisions  of  sect.  24,  as  last  amended,  confer  the  fullest 
powers  of  adjournment  with  reference  to  the  different  terms  to 
be  held  as  above  stated. 

The  appellate  jurisdiction  of  these  tribunals  has  been  before 
defined.  Their  decisions  are  reviewable  by  the  general  term  of 
the  Supreme  Court,  under  chap.  III.  of  title  XI.  of  the  second 
part  of  the  Code. 

By  the  amendments  of  1851  and  1852,  these  tribunals  are  sub- 
stituted for  the  Supreme  Court,  as  the  proper  forum  for  the 
decision  of  questions  of  title,  in  suits  originally  commenced  in  the 
justices'  courts,  but  discontinued  under  the  provisions  of  sees. 


32  SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS. 

55  to  62,  inclusive.  Sec.  68,  as  printed  in  the  laws  of  1851,  has 
been  omitted  to  be  corrected  in  this  respect,  but  that  this  is  a 
mere  clerical  error  is  self-evident. 

If  a  Count}'  Court  entertain  a  suit  for  an  amount  exceeding 
the  limits  of  its  jurisdiction  as  above  defined,  the  proceedings  will 
of  course  be  void.  Oriswold  v.  Sheldon,  4  Comst.  581 ;  ICE. 
(N.  S.)  261. 

In  proceedings  supplementary  to  an  execution  issued  by  the 
County  Court,  a  judge  of  the  Supreme  Court  has  no  power,  to 
make  an  order,  and,  if  made,  such  order  will  be  vacated.  The 
power  in  this  respect  is  limited  by  sec.  292  to  a  judge  of  the 
court  or  a  county  judge,  and  therefore  the  county  judge  alone 
has  jurisdiction.     Blake  v.  Locy,  6  How.  108. 


CHAPTER     VI. 


OF  THE  SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS  OF  THE 
CITY  OF  NEW  YORK. 

§  19.  Jurisdiction  and  Powers  of ,  generally  considered. 

Though,  relatively  speaking,  of  far  higher   authority  than 
the  courts  treated  of  in  the  last  division,  these  tribunals  possess, 
in  some  features,  an  analogous  jurisdiction.     The  superiority 
alluded  to  consists  in  the  fact  of  their  decisions  being  review- 
able at  once  by  the  Court  of  Appeals,  without  any  intermediate 
revision.     Their  jurisdiction  is  also,  within  its  peculiar  scope, 
unlimited  in  its  nature,  and  unfettered  by  any  restriction  as  to 
the  form  mi-  amount  of  the  controversies  brought  before  it.  These 
two  tribunals  are,  in  fact,  of  coordinate  and  equal  authority  with 
Supreme  Court,    in    all    matters  duly  brought   under  their 
and,  although  the  decisions  of  the  latter  are,  of 
course,  always  consi  Lered  by  them  as  entitled  to  the  highest  re- 
till,  whereverany  disagreement  of  opinion  has  occurred, 
they  have  never  he  itated  to  disregard  the  authority  of  those 
decisions,  and  to  make  rulings  to  the  contrary  effect. 

Ford  v.  Babcock,  '1  Sandf.  518,  7  L.  O.  270;  The 
Washington  Bank  of  Westerly  v.  Palmer,  2  Sandf.  686,  8  L.  0.  92, 


SUPERIOR  COURT  AND  COURT  OF  COMMON  RLEAS.  33 

and  Reynolds  v.  Davis,  5  Sandf.  267,  may  be  mentioned  as  three 
out  of  the  many  instances  of  the  exercise  of  this  discretion,  ap- 
pearing upon  the  recent  reports.  In  the  case  of  Cashmere  v. 
Be  Wolf,  2  Sandf.  379,  the  powers  of  this  court  to  assume  juris- 
diction of  a  matter  which,  under  ordinary  circumstances,  would 
have  been  one  of  admiralty  cognizance,  were  also  distinctly 
asserted:  and  although,  in  Sturgis  v.  Law,  3  Sandf.  451,  the  court 
there  refused  to  assume  jurisdiction  of  a  case  arising  out  of 
salvage,  still  that  decision  proceeded  on  a  general  view  of  com- 
mon law  jurisdiction,  and  not  on  any  point  in  connection  with 
the  special  powers  of  these  courts. 

Original  Constitution  of] — The  statutory  provisions  for  the 
constitution  of  the  Court  of  Common  Pleas,  will  be  found  at 
2  K.  S.  216,  and  in  various  subsequent  acts,  collected  in  the  third 
edition  of  those  statutes,  vol.  II.,  page  284  to  289.  The  organi- 
zation of  the  Superior  Court  was  effected  by  c.  137  of  the  laws 
of  1828,  which  act,  and  the  subsequent  provisions  affecting  it, 
will  be  found  in  vol.  II.,  pages  311  to  317,  and  likewise  at  page 
751  of  vol.  III.  of  the  same  edition,  and  in  the  laws  of  the  dif- 
ferent sessions  subsequent  to  its  publication. 

Provisions  of  Code,] — The  jurisdiction  of  these  courts,  and  like- 
wise of  those  treated  of  in  the  succeeding  chapter,  is  thus  de- 
fined by  the  Code : 

§  33.  The  jurisdiction  of  the  Superior  Court  of  the  City  of  New  York, 
of  the  Court  of  Common  Pleas  for  the  City  ancl  County  of  New  York 
of  the  Mayors'  Courts  of  cities,  and  of  the  Recorders'  Courts  of  cities, 
shall  extend  to  the  following  actions  : 

1.  To  the  actions  enumerated  in  section  one  hundred  and  twenty- three 
and  one  hundred  and  twenty-four,  when  the  cause  of  action  shall  have 
arisen,  or  the  subject  of  action  shall  be  situated,  within  those  cities 
respectively. 

2.  To  all  other  actions  where  all  the  defendants  shall  reside,  or  are 
personally  served  with  the  summons  within  those  cities  respectively,  or 
where  one  or  more  of  several  defendants,  jointly  liable  on  contract,  reside 
or  are  personally  served  with  the  summons,  within  those  cities  respect- 
ively, except  in  the  case  of  Mayors'  and  Recorders'  Courts  of  cities, 
which  courts  shall  only  have  jurisdiction  where  all  the  defendants  reside 
within  the  cities  in  which  such  courts  aie  respectively  situated.  The 
Supreme  Court  may  remove  into  that  court  any  action  brought  under 

3 


34  SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS. 

this  subdivision,  and  pending  in  the  Superior  Court,  or  Court  of  Common 
Pleas  for  the  city  and  county  of  New  York,  and  may  change  the  place 
of  trial  therein,  as  if  such  action  had  been  commenced  in  the  Supreme 
Court ;  such  order  for  removal  and  for  change  of  place  of  trial  to  be 
made  in  the  Supreme  Court  upon  motion  ;  and,  on  filing  a  certified  copy 
of  such  order  in  the  office  of  the  clerk  of  the  Superior  Court,  or  of  the 
Court  of  Common  Pleas,  such  cause  shall  be  deemed  to  be  removed  into< 
the  Supreme  Court,  which  shall  proceed  therein  as  if  the  same  had  ori- 
ginally been  commenced  there  ;  and  the  clerk  with  whom  such  order  is 
filed  must  forthwith  deliver  to  the  clerk  of  the  county  in  which,  by  such 
order,  the  trial  is  ordered  to  be  had,  to  be  filed  in  his  office,  all  process, 
pleadings,  and  proceedings  relating  to  such  cause.  Any  action  or  pro- 
ceeding pending  in  any  Mayor's  or  Recorder's  Court,  in  which  the  judge 
is  for  any  cause  incapable  of  acting,  may  by  such  court  be  transferred 
to  the  County  Court ;  and  thereupon  the  papers  on  file  in  the  Mayor's 
or  Recorder's  Court  shall  be  transmitted  to  the  County  Court  ;  which 
shall  thenceforth  have  jurisdiction  of  such  action  or  proceeding. 

3.  To  actions  against  corporations,  created  under  the  laws  of  this  Stale, 
and  transacting  their  general  business,  or  keeping  an  office  for  the  trans- 
action of  business  within  those  cities  respectively,  or  established  by  law 
therein,  or  created  by 'or  under  the  laws  of  any  other  State,  government, 
or  country,  for  the  recovery  of  any  debt  or  damages,  whether  liquidated 
or  not,  arising  upon  contract  made,  executed,  or  delivered  within  the 
State,  or  upon  any  cause  of  action  arising  therein. 

The  actions  enumerated  in  subdivision  1  are  all  either  real 
actions,  or  otherwise  of  a  local  nature,  requiring  trial  by  a  local 
court,  and,  as  such,  peculiarly  falling  within  the  cognizance  of 
these  courts,  as  answering  that  description.  Subdivision  2  is 
extended  in  operation,  and  somewhat  altered  in  phraseology 
from  the  same  provision  as  it  stood  in  the  Code  of  1851.  The 
extension  is  with  reference  to  actions  against  defendants  jointly 
indebted  on  contract;  service  on  any  one  of  whom  within  the 
limits  is  now  sufficient  to  confer  jurisdiction.  Under  these  pro- 
visions, any  cause  of  action  whatsoever  is  now  cognizable  by 
courts,  provided  the  conditions  precedent  as  to  residence 
or  g  ■■  satisfied  ;   but  it  will  be  seen  that,  under  the  latter 

part  of  the  clause,  the  Supreme  ('unit  possesses  the  same  powers 
of  removing  actions  from  these  courts  into  any  other  county 
within  its  own  peculiar  cognizance,  which  it  possesses  with  re- 
ferenoe  to  the  change  of  tin:  place  of  trial  from  one  of  those 
counties  to  another;  aid  this  power  has  been  extended  by  the 


SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS-  35 

last  amendment,  and  made  applicable  to  any  action  brought 
under  this  last  subdivision,  whether  transitory  or  not,  without 
restriction.  This  power,  however,  extended  as  it  is,  in  no  prac- 
tical respect  derogates  from  the  coordinate  authority  of  the  New 
York  tribunals,  and  is,  in  itself,  one  most  essential  to  the  ends 
of  justice ;  in  reference  to  cases  in  which  the  jurisdiction  of  the 
latter  may  have  been  acquired  by  casual  service  within  their 
district,  the  real  matter  in  controversy  being  situate  elsewhere, 
and  the  evidence  in  support  of  that  matter  being  only  there 
attainable.  It  is  evident  that,  where  the  parties  all  reside  in 
New  York,  and  the  cause  of  action  is  either  purely  transient,  or 
locally  situate  within  that  city,  this  power  can  never  in  practice 
be  exercised,  and  therefore  any  conflict  of  jurisdiction  on  the 
subject  is  highly  improbable. 

The  further  provision,  as  to  the  removal  of  causes  pending  in 
a  mayor's  or  recorder's  court,  in  which  the  judge  is  incapable  of 
acting,  was  also  first  inserted  on  the  recent  amendment,  as  a 
necessary  corollary  to  the  similar  provision  as  to  county  courts, 
in  subdivision  13  of  sec.  30. 

It  seems  clear  that  an  order  of  this  nature,  on  the  part  of  the 
Supreme  Court,  removes  the  cause,  and  not  merely  the  place  of 
trial,  notwithstanding  the  note  at  2  C.  E.  50. 

The  Superior  Court  itself  has  imposed  analogous  limits  on  its 
own  jurisdiction  in  the  case  of  Ring  v.  McCoun,  3  Sandf.  524, 
where  it  refused  to  entertain  a  cause,  in  which,  (although  in 
every  other  respect  it  was  clearly  within  the  scope  of  its  cogni- 
zance, both  as  regarded  the  parties  and  the  origin  of  the  cause 
of  action,)  title  to  land  in  another  county  came,  nevertheless, 
into  question-;  and  which  county  might,  therefore,  under  sec. 
123,  be  fairly  contended  to  be  the  proper  place  of  trial.  A  suit 
for  specific  performance  of  a  contract  does  not,  however,  come 
within  this  category ;  a  proceeding  of  that  nature  is  not  a  real 
but  a  personal  action.    Auchincloss  v.  Nott,  12  L.  0.  119. 

General  Characteristics  of  both  Courts.'] — The  powers  and  offices 
of  the  general,  special,  and  trial  terms  of  these  courts,  (the  latter 
term  being  synonymous  with  that  of  Circuit  Court,)  are  identical 
with  those  of  the  Supreme  Court  before  noticed.  The  practice 
in  them  is  regulated  by  the  general  rules  of  the  latter  tribunal ; 
but  the  Superior  Court  has  also  published  a  further  set  of  rules 
for  its  own  guidance,  with  reference  to  the  arrangement  of  the 


36  SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS. 

business  before  it,  and  the  mode  of  transacting  that  business. 
The  Common  Pleas  has  likewise  made  some  few  regulations  on 
similar  matters,  particularly  in  reference  to  the  hearing  of  ap- 
peals from  the  Marine  and  Justices'  Courts.  These  rules  will 
form  the  subject  of  constant  citation  throughout  the  work. 

Common  Pleas — -further  Special  Jurisdiction.'] — In  addition  to 
the  powers  which  it  possesses  in  common  with  the  Superior  Court, 
the  Court  of  Common  Pleas  is  also  invested,  by  sections  34  and 
352  of  the  Code,  with  the  peculiar  cognizance  of  appeals  from 
the  Marine  Court  of  New  York,  and  also  from  the  Justices' 
Courts  within  that  city,  a  branch  of  jurisdiction  formerly  exer- 
cised by  the  sister  tribunal. 

In  addition  to  the  above  items  of  jurisdiction,  the  powers  of 
this  court  have  been  recently  extended  by  sec.  6  of  c.  198  of  the 
laws  of  1854,  in  the  following  terms  : 

§  6.  The  said  Court  of  Common  Pleas  for  the  city  and  county  of 
New  York  lias  power  and  jurisdiction  of  the  following  proceedings: 

To  remit  fines  and  forfeited  recognizances,  in  the  same  cases  and  in 
like  manner  as  such  power  was  heretofore  given  by  law  to  Courts  of 
Common  Pleas,  and  to  correct  and  discharge  the  dockets  of  liens  and  of 
judgments  entered  upon  recognizances,  and  to  exercise  in  the  city  and 
county  of  New  York  all  the  powers  and  jurisdiction  now  or  hereafter 
conferred  upon  or  vested  in  the  said  court,  or  the  County  Courts  in  their 
counties,  and  the  powers  and  jurisdiction  which  were  vested  in  the 
Court  of  Common  Pleas  for  the  city  and  county  of  New  York  before 
the  enactment  of  the  act  designated  as  the  Code  of  Procedure,  passed 
April  12,  1848. 

Ami,  by  the  same  statute,  the  appointment  of  a  special  clerk 

of  that  court,  and  the  removal  of  all  prior  documents  from  the 

office  of  the  clerk  of  the  city  and  county  of  New  York,  is  ex. 

ly  provided   for,  with  a  view  to  its  more  complete  and 

Beparate  organization. 

Superior  Court — Peculiar  Cliaracieristics  of.~] — It  would  seem 
that  doubts  bave  been  started  as  to  the  equity  jurisdiction  of 
the  Superior  Court,  but,  when  examined  into,  those  doubts  ap- 
pear i"  n  '  upon  Little  or  do  foundation.  The  preamble  of  the 
Code,  and  sec.  69,  when  read  in  connection  with  the  unlimited 
lizance  of  actions  within  their  local  limits  which  Is  conferred 
upon  ;  >urts  in  general  by  sec  38,  and,  moreover,  with  the 

peculiar  cognizance  of  transferred  equity  eases  given  to  the 


SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS.  37 

Superior  Court  by  sec.  47,  are  utterly  and  irreconcilably  at 
variance  with  any  such  notion;  and  jurisdiction  of  this  nature 
has  been  exercised  by  this  court  from  the  original  passage  of 
the  Code,  without  any  question  whatever.  To  cite  cases  upon 
the  subject  would  be  really  superfluous,  as  the  exercise  of  that 
jurisdiction  appears  in  almost  every  page  of  the  five  volumes 
of  Sanclford's  Eeports.  Cashmere  v.  De  Wolf,  above  cited; 
Linden  v.  Hepburn,  3  Sandf.  668  ;  3  C.  R  165  ;  5  How.  188;  and 
Mayne  v.  Grisivold,  3  Sandf.  463  ;  may  be  taken  as  types  of  this 
class  of  cases,  but  to  attempt  to  cite  the  whole  of  them  would  be 
unnecessary.  The  exercise  of  the  same  branch  of  jurisdiction 
is  also  recognized  and  acted  upon  by  the  Court  of  Appeals  in 
Palmer  v.  Lawrence,  1  Seld.  389. 

The  decisions  of  this  court  have  been  very  fully  reported;  and 
it  need  scarcely  be  said  that  those  reports  are  of  high  authority, 
and  possess,  moreover,  a  general  character  of  unity  with  each 
other,  owing  to  the  peculiar  centralization  of  the  court,  and  to 
that  constant  communication  which  takes  place  between  all  the 
judges  composing  it,  which,  in  the  more  widely-diffused  attri- 
butes of  the  Supreme  Court,  is,  of  course,  physically  impracti- 
cable. On  more  than  one  occasion  those  judges  have  taken  high 
ground  in  asserting  the  dignity  of  their  tribunal,  and  that,  even 
as  regards  the  Court  of  Appeals  itself.  See  citation  of  case  of 
Nicholson  v.  Leavitt,  4  Sandf.  253,  9  L.  O.  105,  and  remarks 
thereon,  and  also  on  the  unreported  case  of  Bowen  v.  Newell,  as 
contained  in  chap.  III.  of  this  book.  See  likewise  the  dissent- 
ing opinion  of  Bosworth,  J.,  in  Oakley  v.  Aspinivall,  1  Duer,  1, 
10  L.  O.  79. 

In  addition  to  the  justices  of  the  Superior  Court  as  originally 
constituted,  provision  is  made  by  the  Code,  sec.  41  to  45,  for  the 
election  of  three  additional  judges,  and  for  their  classification 
in  a  manner  analogous  to  that  of  the  elected  judges  of  the 
Court  of  Appeals ;  their  future  terms  of  office,  after  the  expi- 
ration of  those  under  such  classification,  to  be  six  years.  The 
jurisdiction  of  the  judges  so  appointed  is  coextensive  with  that 
of  the  judges  of  the  court  under  its  original  constitution,  Huff 
v.  Bennett,  2  Sandf.  703 ;  2  C.  E.  139.  In  section  47  of  1849, 
provision  was  made  for  the  transfer  to  this  court  of  some  portion 
of  the  arrears  of  issues  of  law  and  equity  cases  then  pending  in 
the  Supreme  Court,  and,  under  section  49,  the  hearing  of  these 
transferred  cases  Avas,  for  a  term  of  two  years,  to  be  the  peculiar 


38     SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS. 

office  of  the  three  judges  to  be  so  elected.  By  c.  2  of  the  laws 
of  1851,  this  last  section  was,  however,  repealed,  and  the  three 
judges  in  question  now  exercise  the  general  functions  of  judges 
of  the  court,  without  any  distinction  between  them  and  those 
appointed  under  its  original  constitution.  In  Giles  v.  Lyon,  4 
Comst.  600,  1  C.  E.  (N.  S.)  257,  it  was  held  that  the  power  of  the 
Supreme  Court  in  the  foregoing  respect  was  confined  to  equity 
causes  existing  at  the  passage  of  the  Code,  and  that  a  cause 
subsequently  commenced  could  not  be  so  transferred  to  the 
Superior  Court ;  and  all  the  proceedings  in  a  case  of  that  de- 
scription were  accordingly  set  aside. 

Points  as  to  General  Jurisdiction  of  both  Courts.'] — On  the  subject 
of  jurisdiction  by  service,  the  Superior  Court  has  throughout 
been  disposed  to  take  a  rigid  view  of  its  own  powers.  Thus,  in 
Delafield  v.  Wright,  3  Sandf.  746,  1  C.  E.  (N.  S.)  123,  (a  suit 
brought  against  two  joint  debtors,  as  such,)  the  objection  that 
one  of  the  defendants  was  neither  a  resident,  nor  served  with 
process  within  the  limits,  was  held  to  be  fatal,  and  the  complaint 
was  dismissed  for  want  of  jurisdiction,  notwithstanding  that  the 
resident  defendant  had  appeared,  and  had  put  in  a  separate  de- 
fence. See  Note  on  the  subject  at  1  C.  E.  (N.  S.)  341.  In  Fishery. 
Curtis,  2  Sandf.  660,  2  C.  E.  62,  and  In  re  Carr,  lb.  63,  attachments 
which  had  been  issued  against  non-resident  debtors  were,  on 
similar  grounds,  held  to  be  invalid,  and  it  was  distinctly  laid 
down  in  the  former  case,  that,  to  give  the  court  jurisdiction,  all 
the  defendants  must  either  be  resident,  or  be  served  within  the 
limits,  according  to  the  terms  of  the  section.  This  rule  is,  how- 
ever, relaxed,  as  regards  the  case  of  parties  jointly  indebted,  by 
the  recent  amendment;  service  on  any  one  of  whom,  or  residence 
within  the  limits,  is  now  sufficient  to  confer  jurisdiction,  and  to 
sustain  a  judgment  entered  up  against  all  on  the  joint  indebted- 
ness. Since  that  amendment,  this  court  stands  precisely  on  the 
same  footing  as  the  Supreme  Court  as  to  ulterior  proceedings 
.nst  absent  defendants,  where  jurisdiction  has  been  once 
acquired  by  service  on  :i,ny  one  of  several  joint  debtors.  Ano- 
nymou  <  <  e,  I  Duer,  662.  See  likewise  as  to  the  subsequent 
exercise  of  jurisdiction  once  acquired,  The  People  v.  iSturtevant, 
Court  of  Appi  al  ,  31  Dec,  1853.  Of  course  this  rule  will  not 
apply,  where  the  liabilities  of  such  parties  are  several,  although 
arising  under  the  same  contract.     Where,  however,  none  of  the 


SUPERIOR  COURT  AND  COURT  OF  COMMON  PLEAS.     39 

defendants  reside  within  the  limits,  jurisdiction  cannot  be  ac- 
quired for  any  purposes,  without  actual  service,  nor  can  an  at- 
tachment be  issued.  Granger  v.  Schwartz,  11  L.  0.  346.  See 
also,  as  to  the  non-residence  of  plaintiffs  with  reference  to  an 
attachment,  Payne  v.  Young,  Court  of  Appeals,  12th  April,  1853. 

In  cases  where  the  jurisdiction  arises  under  sec.  123  and  124, 
in  respect  of  local  matters,  the  non-residence  of  some  of  the  de- 
fendants will  form  no  ground  of  objection.  See  the  principles 
laid  down  on  this  subject  in  Cashmere  v.  Crowell,  1  Sandf.  715  ; 
1  C.  E.  95 ;  and  asserted  in  the  subsequent  decision  of  Cashmere 
v.  De  Wolf,  before  referred  to,  although  the  particular  provi- 
sion of  the  Code  of  1848,  in  respect  of  which  that  case  was  de- 
cided, has  been  repealed  by  the  subsequent  amendments. 

Although  service  within  the  limits  confers  jurisdiction,  with- 
out respect  to  the  residence  of  the  party  so  served,  still  the  court 
will  not  sanction  any  attempt  to  bring  a  party  within  that  juris- 
diction by,  any  fraud  or  misrepresentation,  and  will  set  aside  a 
service  effected  by  such  means.  Carpenter  v.  Spooner,  2  Sandf. 
717,  2  C.  E.  140,  which  decision  appears  to  have  been  affirmed 
by  the  general  term,  3  C.  E.  23. 

Where  a  defendant,  irregularly  served,  gave  notice  of  retainer, 
and  afterwards  moved  to  set  the  proceedings  aside  for  want  of 
jurisdiction,  it  was  held  in  the  Common  Pleas  that  he  was  too 
late,  and  that  the  court  had  acquired  jurisdiction  by  his  volun- 
tary appearance.  Smith  v.  Dipeer,  2  C.  E.  70.  A  similar  con- 
clusion was  come  to  by  the  Superior  Court  in  Watson  v.  The 
Cabot  Bank,  5  Sandf.  423,  where  it  was  held  that,  where  the 
court  had  otherwise  jurisdiction  of  the  action,  a  voluntary  ap- 
pearance conferred  it  as  to  the  person. 

In  Auchincloss  v.  Nbtt,  12  L.  0. 119,  it  was  held  that  this  court 
had  jurisdiction  of  a  suit  for  specific  performance  of  a  contract 
relating  to  property  in  another  county,  where  jurisdiction  had 
been  otherwise  acquired  by  service.  A  proceeding  of  that 
nature  is  not  a  real  but  a  personal  action.  A  jurisdictional  ob- 
jection of  the  above  nature  must  be  taken  at  the  outset  of  the 
proceedings,  or  it  will  be  waived ;  nor  can' the  record  of  a  judg- 
ment suffered  to  be  thus  taken,  and  asserting  the  facts  which 
confer  jurisdiction,  be  afterwards  impeached  collaterally.  Dyck- 
man  v.  The  Mayor  of  New  York,  1  Seld.  434. 

In  the  matter  of  a  petition,  5  Sandf.  674,  a  doubt  was  ex- 
pressed whether  the  powers  of  the  Superior  Court  extended  to 


40  MAYORS'  AND  RECORDERS'  COURTS. 

the  granting  of  process  to  compel  the  attendance  of  witnesses  to 
be  examined  under  a  foreign  commission,  and  the  parties  were 
recommended  to  apply  to  the  Supreme  Court  under  its  unques- 
tionable general  powers,  which  course  was  accordingly  pursued. 

In  re  De  Angelis,  1  C.  E.  (N.  S.)  349,  the  question  as  to  the 
powers  of  the  Court  of  Common  Pleas  to  award  as  to  the  cus- 
tody of  children,  pending  an  action  for  divorce  between  their 
parents,  was  raised ;  and  it  was  held  that  the  custody  of  infants 
was  a  matter  of  special  jurisdiction,  formerly  vested  in  the  Court 
of  Chancery  alone,  and  was  therefore  not  a  necessary  incident  to 
the  action  of  divorce,  but  of  a  distinct  and  independent  nature. 
It  was  accordingly  decided  that  the  powers  of  the  Court  of 
Common  Pleas  did  not  extend  so  far  as  to  enable  them  to  make 
any  award  on  the  subject,  and  that  the  Supreme  Court  was  the 
only  competent  tribunal  for  that  purpose. 

Similar  doctrines  have  been  held  by  the  Superior  Court, 
where  the  question  came  up  on  habeas  corpus,  in  The  People  v. 
Porter,  1  Duer,  709  ;  11  L.  O.  228  ;  and  they  were  also  strongly 
asserted  in  relation  to  the  same  matter  by  Barculo,  J.,  in  the 
Supreme  Court,  in  The  People  v.  Cooper,  8  How.  288. 

In  the  former  of  the  last  two  cases,  it  was  held  by  Duer,  J., 
that  a  judge  of  the  Superior  Court  possessed  no  independent 
powers  in  relation  to  the  granting  of  a  habeas  corpus,  but  merely 
those  of  a  Supreme  Court  commissioner.  Jurisdiction  of  an 
analogous  nature  was,  however,  exercised  by  Paine,  J.,  in  rela- 
tion to  the  discharge  of  certain  persons  detained  as  fugitive 
slaves,  in  The  People  v.  Lemmon,  5  Sandf.  G81. 


CHAPTER    VII. 

01    THE  MAYORS'   AND   RECORDERS!  COURTS  OF  CITIES. 

§  20.    Powers  and  Jurisdiction  of. 

ill  not  be  necessary  to  detain  the  reader  <\i  any  length 
on  the  subject  of  the  powers  and  jurisdiction  of  these  oourts,  as, 
witli  reference  i"  the  cognizance  of  actions  in  general,  they  are 
sub.st;uitially  the  those  treated  of  in  the  last  division, 


MAYORS'  AND  RECORDERS'  COURTS.  41 

with  this  important  exception,  that  mere  service  within  the 
limits  is  not  here  sufficient  to  confer  jurisdiction,  but,  under 
subdivision  2  of  sec.  33,  as  before  cited,  absolute  residence  of 
all  the  defendants  within  the  city  in  which  each  of  such  courts 
is  situated,  is  an  absolute  prerequisite  to  its  exercise  of  any 
functions  whatever,  except  in  cases  strictly  local  in  their  nature, 
and  falling  as  such  within  subdivision  1  of  that  section. '  These 
courts  are  likewise  devoid  of  any  appellate  jurisdiction  what- 
ever, and  their  own  proceedings  are  not  subjects  of  review  by 
the  Court  of  Appeals,  until  they  have  been  previously  submitted 
to  the  intermediate  jurisdiction  of  the  Supreme  Court. 

The  recent  provision  as  to  removal  into  the  Supreme  Court 
of  cases  pending  in  these  jurisdictions,  in  which  the  judge  is  in 
any  manner  incapable  of  acting,  will  of  course  be  noticed. 

It  would  seem  that  by  the  terms  of  sec.  470,  if  strictly  con- 
strued, the  rules  of  the  Supreme  Court  are  not  binding  upon 
these  tribunals,  but  only  on  the  County  Courts ;  but  there  can 
be  little  doubt  that,  in  practice,  they  will  be  found  the  safest,  if 
not  the  only  safe  guides  to  follow. 

The  statutory  provisions  on  the  subject  of  the  organization  of 
these  courts  will  be  found  collected  in  volume  2  of  the  third 
edition  of  the  Revised  Statutes,  pages  293  to  311.  The  cities  in 
which  they  are  thereby  established,  are  Albany,  Hudson,  Troy, 
Buffalo,  and  Utica,  and  also  Eochester ;  but  the  last  court  has 
since  been  abolished  by  c.  303  of  the  laws  of  1849.  In  vol.  3 
of  the  same  edition,  pages  702  to  708,  inclusive,  will  be  found 
various  provisions  in  relation  to  the  same  courts,  and  also  those 
establishing  a  similar  court  in  the  city  of  Oswego,  subsequently 
amended  by  c.  134  of  the  laws  of  1849. 

The  City  Court  of  Brooklyn  was  established  by  c.  125  of  the 
laws  of  1849,  amended  by  c.  102  of  the  laws  of  1850. 

By  c.  138  of  the  latter,  the  act  as  to  the  establishment  of  these 
courts  in  Buffalo  is  amended. 

The  former  of  the  two  tribunals  last  mentioned  is  one  of  great 
and  increasing  importance.  It  possesses,  in  common  with  others 
of  this  class,  in  which  the  whole  business  is  carried  on  by  a 
single  judge,  this  peculiar  and  exceptional  feature,  viz.,  that  the 
report  of  a  referee,  when  impeached,  must  be  reviewed  in  the 
first  instance  on  motion  by  the  judge  of  the  court,  before  an 
appeal  from  the  judgment  founded  on  that  report  can  be  carried 
up  to  the  higher  tribunal.    Goulard  v.  Castillon,  12  Barb.  126. 


42  JUSTICES'  COURTS. 

This  review  stands  in  the  place  of  the  appeal  to  the  general 
term  of  the  same  tribunal  in  the  courts  of  larger  jurisdiction, 
and  is  expressly  contemplated,  though  only  indirectly  referred 
to  in  the  acts  above  cited. 

In  Griffith  v.  Griffin,  6  How.  428,  before  cited,  it  was  held 
that  the  act  of  the  Legislature,  conferring  upon  the  recorder  of 
Troy  the  powers  of  a  county  judge,  was  unconstitutional,  and 
his  acts  under  it  void.  This  principle,  if  confirmed,  is  doubtless 
applicable  to  all  courts  falling  within  this  category. 


CHAPTER     VIII. 


OF  JUSTICES'  COURTS  IN  GENERAL,  INCLUDING  THE  MARINE  AND 
JUSTICES'  COURTS  IN  THE  CITY  OF  NEW  YORK. 

§  21.   Powers  and  Jurisdiction  of. 

In  pursuing  the  analysis  of  the  different  courts  of  civil  juris- 
diction within  this  State,  whose  practice  and  proceedings  are 
affected  by  the  Code,  we  come,  in  the  last  place,  to  the  courts  of 
inferior  jurisdiction  above  enumerated.  For  all  general  purposes, 
the  powers  of  these  different  courts  are  substantially  the  same, 
though  the  Marine  Court,  under  sec.  65,  possesses  peculiar  au- 
thority in  reference  to  actions  on  contract,  in  respect  of  ser- 
vices performed,  or  of  tort,  for  injuries  committed  on  board  ves- 
sels in  the  merchant  service :  subject  however,  in  all  respects, 
to  the  paramount  authority  of  the  United  States'  Courts,  in 
cases  of  admiralty  or  maritime  jurisdiction.  The  powers  and 
scope  of  the  Marine  Court  have  been  recently  increased  by 
til-  Legislature,  and  it  is  become  in  consequence  a  tribunal  of 
much  greater  utility  and  importance.  It  now  possesses  cogni- 
zance of  controversies  to  the  value  of  $500,  and  is  invested  with 
Ike  power  of  reviewing  its  own  decisions  in  general  term. 

The  statutory  provisions  on  these  subjects  will  be  found  in 
c.  617  of  the  laws  of  L858,  p.  1165.  By  that  statute  it  is  pro- 
vided that  an  appea]  of  this  nature  shall  have  the  same  effect  as 
that  tOth<  .ihi.i]  trim  of  the  courts  of  higher  jurisdiction.  The 
Leg]  1. it  in.'  bas however  omitted  to  define  whether  this  form  of 
appeal  a  optional  or  imperative,  and  also  whether,  in  the  event 


JUSTICES'  COURTS..  43 

of  its  being  taken,  the  time  for  the  appeal  to  the  Court  of  Com- 
mon Pleas  is  thereby  extended.  The  latter  tribunal  has  held 
that  such  is  not  the  case,  and  that  the  only  appeal  which  it,  as 
the  appellate  court,  can  recognize,  is  from  the  decision  of  the 
single  justice,  and  that,  taken  within  the  statutory  period  of 
twenty  days  from  the  judgment  on  that  decision.  Heidenheimer 
v.  Lyon,  unreported.  This  form  of  appeal  has,  however,  been  so 
far  recognized  by  the  same  tribunal  as  to  hold  that,  during  its 
pendency,  a  stay  of  proceedings  on  an  execution  issued  out  of 
the  court  above  will  be  granted,  though  not  as  of  right,  but  on  a 
special  application  for  that  purpose. — Ritterhand  v.  Maryatt,  12 
L.  0.  158. 

The  enlargement  of  jurisdiction  of  the  Marine  Court  was  held 
not  to  be  retrospective,  so  far  as  regards  the  question  of  costs,  in 
Dunbar  v.  Duffy,  11  L.  0.  349. 

The  general  provisions  on  the  subject  of  Justices'  Courts  are 
contained  in  title  VI.  of  part  I.  of  the  Code,  and  the  boundaries 
of  their  jurisdiction  are  laid  down  in  sec.  53,  when  read  in  con- 
nection with  the  provisions  of  sec.  65,  above  referred  to,  and  also 
with  those  in  reference  to  actions  upon  the  charters  or  by-laws 
of  the  corporations  of  the  different  cities.in  which  Justices'  Courts 
are  held,  contained  in  the  same  and  the  two  following  sec- 
tions. 

The  plan  before  laid  down  for  the  general  scope  of  the  work, 
forbids  any  lengthened  discussion  on  the  subject  of  this  juris- 
diction; but  it  may  be  shortly  defined  as  limited,  in  ordinary 
cases,  to  causes  of  action  where  the  value  of  the  matter  in  dis- 
pute does  not  exceed  $100  in  the  Justices',  and  $500  in  the  Ma- 
rine Court,  but  as  comprising  a  very  general  cognizance  of  con- 
troversies within  that  limit,  save  those  only  which,  by  sec.  54, 
are  made  the  subjects  of  special  exception.  In  actions  on  surety 
bonds  taken  by  these  courts  in  the  exercise  of  their  jurisdiction, 
their  powers  are  of  wider  extent ;  and,  in  reference  to  the  taking 
of  judgments  by  confession,  under  the  provisions  of  the  Revised 
Statutes,  those  powers  extend  to  all  cases  where  the  amount  con- 
fessed does  not  exceed  $250.  A  plaintiff  cannot,  however,  split 
up  an  undivided  demand  into  different  actions  for  the  purpose 
of  conferring  jurisdiction  ;  though  it  would  seem  he  may  consent 
to  reductions,  or,  on  too  large  a  recovery,  may  remit  the  excess 
for  that  purpose.  It  would  seem,  also,  that  by  consent  of  the 
defendant,  but  not  otherwise,  a  larger  demand  may  be  divided, 


44  JUSTICES'  COURTS. 

in  order  to  the  confession  of  separate  judgments  for  different  por- 
tions of  it. 

By  sec.  54,  the  following  causes  of  action  are  excepted  from 
the  jurisdiction  of  these  courts  : 

1.  Cases  to  which  the  people  are  a  party,  except  for  penalties 
within  the  limitation  above  laid  down. 

2.  Cases  in  which  the  title  to  real  property  shall  come  into 
question. 

3.  Civil  actions  for  assault,  battery,  false  imprisonment,  libel, 
slander,  malicious  prosecution,  criminal  conversation,  or  seduc- 
tion. By  the  act  of  1853,  above  cited,  the  Marine  Court  is  in- 
vested with  special  jurisdiction  over  all  this  class  of  actions, 
(except  those  for  criminal  conversation  and  seduction,)  where 
the  damages  claimed  do  not  exceed  $500. 

4.  Matters  of  account  where  the  sum  total  of  the  accounts  of 
both  parties  to  the  controversy  exceeds  $400 ;  and, 

5.  Actions  against  executors  or  administrators  as  such. 
N.  B. — Parties  standing  in  these  capacities  are,  however,  compe- 
tent to  sue  as  plaintiffs,  and  the  defendant,  in  that  case,  may 
plead,  and  if  he  prevail,  may  enter  and  enforce  judgment  for  a 
set-off,  as  in  the  higher  courts. 

With  reference  to  No.  4,  it  might  probably  be  held,  that  an 
action  may  be  maintained  in  respect  of  a  balance  actually  struck 
and  settled,  though  the  aggregate  items  of  the  accounts  on  which 
it  arises  exceed  $400,  provided  no  question  arises  on  the  accounts 
themselves  as  such.  When,  however,  such  is  the  case,  and  it 
would  seem  that,  whenever  the  objection  is  formalty  taken,  the 
court  has  no  jurisdiction,  however  small  the  actual  balance  may 
be.    Lockwood  v.  Isaacs,  1  C.  11.  29. 

§  22.  Discontinuance  before  Justice  where  Title  in  question. 

The  mode  of  assertion  of  the  defendant's  claim  to  exemption 
from  suit,  in  these  courts,  where  the  title  to  real  property  may 
come  into  question,  is  pointed  out  by  sections  55  to  59  inclusive. 
(The  po  M  t<>  the  justice  by  sec.  62  to  continue  any  per- 

of  action,  independent  of  those  stayed  on  this  ac- 
COUnt,  will   of  course   not,  be  overlooked.)     The  course  to  be 
I,  on   this  objection   being  taken,  is  the  putting  in  of  a 
written   an  wer,  showing  Buch  to  be  the  case,  accompanied  by 
an  undertaking,  executed  l»y  one  or  more  sufficient  sureties,  in  a 


JUSTICES'  COURTS.  45 

penalty  of  $100,  conditioned  for  the  giving  a  written  admission 
of  service  of  summons  and  complaint  in  the  County  Court,  in 
the  event  of  the  same  being  deposited  with  the  justice  within 
thirty  days  thereafter,  such  admission  to  be  given  within  ten 
days  from  the  time  of  that  deposit ;  and  conditioned  also  for  the 
defendant's  rendering  himself  amenable  to  all  process  of  that 
court  in  those  cases  where,  at  the  time  of  giving  the  undertaking, 
he  has  already  been  arrested  under  the  authority  of  the  inferior 
tribunal.  It  would  be  prudent,  on  the  preparation  of  an  un- 
dertaking of  this  nature,  to  follow  the  rules  hereafter  laid  down 
with  reference  to  those  required  by  the  Superior  Courts,  though 
this  does  not  appear  to  be  imperative,  but  to  rest  in  the  discre- 
tion of  the  justice.  In  Davis  v.  Jones,  4  How.  340,  3  C.  K.  63,  it 
was  held  that  the  limitation  of  ten  days  in  the  above  provision 
is  absolutely  imperative,  and  that  the  court  above  possesses  no 
power  of  curing  the  defect  by  amendment,  if  the  defendant, 
through  ignorance  of  the  deposit  of  the  summons  and  complaint 
with  the  justice,  (of  which  it  would  seem  the  plaintiff  is  not 
bound  to  give  any  notice,)  omit  to  furnish  the  required  admission 
within  the  period  so  limited ;  the  mere  deposit  of  the  summons 
not  being  a  commencement  of  the  action  sufficient  to  give  the 
court  jurisdiction  to  exercise  its  general  powers  of  amendment 
under  sections  173  and  174. 

If,  however,  the  plaintiff  accept  an  answer  put  in  in  the  higher 
court,  without  the  formal  admission,  as  above  provided,  it  will 
be  considered  as  a  waiver  of  the  objection,  and  the  subsequent 
proceedings  will  stand.  Wiggins  v.  Tallmaclge,  7  How.  404. 
The  giving  the  undertaking  is,  however,  essential.  Lalliette  v. 
Vankeuren,  7  How.  409. 

On  the  delivery  of  the  undertaking  above  described,  the  cause 
is  to  be  discontinued  before  the  justice,  but,  if  the  defendant 
omit  to  take  this  step,  his  jurisdiction  is  restored,  notwithstand- 
ing the  answer ;  and  the  defence  of  title  being  in  question  will 
then  no  longer  be  admissible,  unless  that  fact  appear  on  the 
plaintiff's  own  showing,  in  which  last  event  the  action  cannot  be 
maintained,  but  must  be  dismissed  with  costs ;  and  it  would 
seem  that  in  such  cases  the  justice  cannot  take  cognizance  of 
the  cause  even  by  consent.    See  Striker  v.  Mott,  6  Wendell,  405. 

Where,  however,  the  fact  that  title  is  in  question  appears  by 
the  complaint,  and  the  defendant  omits  to  take  the  objection  in 
the  manner  above  prescribed,  the  justice's  jurisdiction  remains, 


46  JUSTICES'  COURTS. 

and  the  defendant  will  be  precluded  from  availing  himself  of 
the  benefit  of  the  59th  section  at  the  trial.  Adams  v.  Rivers,  11 
Barb.  390. 

"Where,  too,  the  title  to  real  estate  is  not  pleaded,  the  justice 
will  not  be  ousted  of  his  jurisdiction,  merely  because  it  may  be 
necessary  to  prove  it  in  order  to  sustain  the  action,  unless  such 
title  is  disputed  by  the  defendant.  Bellows  v.  Sackett,  15  Barb.  96. 

The  point  as  to  whether  title  to  lands  does  or  does  not  come 
in  question,  appears  to  be  cognizable  by  the  justice  in  the  first 
instance,  where  there  is  no  reasonable  doubt  on  the  subject,  but 
not  where  any  such  doubt  exists.  Whenever  any  real  point  of 
this  nature  arises,  the  case  is  likely  to  be  one  of  difficulty,  and 
can  only  be  dealt  with  by  the  higher  tribunal.  The  mere  plead- 
ing of  a  grant  of  the  Legislature,  in  an  action  brought  for  the 
assertion  of  a  public  right,  was  held  in  Browne  v.  Scqfield,  8  Barb. 
239,  (an  action  for  damages  for  obstructing  a  navigable  river,) 
as  not  in  its  nature  a  case  of  claim  of  title  to  lands  sufficient  to 
oust  the  justices'  jurisdiction.  The  assertion  of  a  private  right 
of  way  has,  however,  been  uniformly  held  to  be  a  question  in- 
volving title.  See  Striker  v.  Mott,  above  referred  to  ;  Boyce  v. 
Brown,  3  How.  391 ;  7  Barb.  80. 

It  will  be  observed,  on  a  comparison  of  the  Codes  of  1819  and 
1851,  that  the  County  Court  is  now  substituted  for  the  Supreme 
Court,  as  the  tribunal  in  which  the  action  in  lieu  of  that  discon- 
tinued before  the  justice  is,  for  the  future,  to  be  brought  in 
all  cases.  See,  however,  the  error  in  printing  sec.  68,  before 
noticed. 

On  the  bringing  of  such  substituted  action,  the  suit  is  in  effect 
one  in  the  County  Court,  and  judgment  is  to  be  entered  on  its 
decision  as  such.  In  one  respect,  however,  the  proceedings 
difi«ir.  and  that  is  with  reference  to  the  pleadings.  It  was  at 
first  held  that  these  must  be  the  same  as  those  before  the  justice, 
and  thai  they  could  not  be  amended  in  matters  of  substance, 
and  also  thai  a  reply  could  not  be  now  put  in,  in  such  a  suit, 
under  any  circumstances.  McNamara  v.  Bitely,  4  How.  1-1; 
v.  Whabn,  5  Bow.  302;  1  C.  R.  (N.  S.)  27;  Wendell  v. 
Mitchell,  5  II  >w.  t24.  This  view  is,  however,  controverted  by 
the  decisions  in  Kiddle  v.  Degroot,  1  C.  R.  (N.  S.)  202  and  272, 
and  JeweU  v.Jewett,  6   Eow.  185;  and  the  point  has  since  been 

ttled  by  the  Courl  of  A.ppealsin  Wiggins  v.  Tallmadge,  7  How. 
lof,  where  it  is  laid  down  that  the  provision  that  the  defend- 


JUSTICES'  COURTS.  47 

ant's  answer  is  to  be  the  same,  does  not  require  the  same  iden- 
tical words,  but  only  tie  same  substantial  defence.  It  was  also 
held  that  the  defendant  in  such  cases  is  at  liberty  to  abandon 
part  of  his  original  defence,  provided  the  remainder  of  it  was 
not  varied  from  the  grounds  originally  taken. 

For  the  purposes  of  appeal,  proceedings  of  this  nature  will  be 
held  to  be  actions  in  a  Justices'  Court,  and  the  Court  of  Appeals 
has  accordingly  no  jurisdiction  to  review  the  decision  of  the 
Supreme  Court  thereupon.  See  Brown  v.  Brown,  2  Seld.  106  ; 
6  How.  320 ;  Pugsley  v.  Kesselburgh,  7  How.  402 ;  Wiggins  v. 
Tallmadge,  7  How.  404. 

§  23.     Proceedings  in  Courts  in  question. 

A  sj^stem  of  rules  with  reference  to  the  pleadings  and  practice 
in  these  courts,  is  laid  down  by  section  64  of  the  Code,  -which, 
in  a  great  many  respects,  but  not  altogether,  supersedes  the 
provisions  of  the  Eevised  Statutes  in  reference  to  these  tribunals 
in  general,  including  the  proceedings  therein,  the  removal  there- 
of by  certiorari,  and  the  review  of  their  decisions.  The  whole 
of  those  provisions  must  therefore  be  still  made  the  subjects  of 
careful  study,  in  connection  with  those  of  the  Code.  They  will 
be  found  in  titles  III.  and  IV.  of  chap.  II.,  part  III.  of  the  Re- 
vised Statutes,  2  R.  S.  224  to  275,  and  in  various  subsequent 
acts  on  the  same  subject,  collected  in  the  third  edition,  vol.  II., 
pages  323  to  373,  and  likewise  at  pages  708  and  709  of  vol.  III. 
The  original  constitution  of  the  Marine  Court  will  be  found  in 
the  Revised  Laws  of  1813,  its  further  organization  in  c.  144  of 
the  Laws  of  1849,  and  its  recent  reorganization  and  enlargement 
in  Laws  of  1852,  c.  389,  and  Laws  of  1853,  c.  617.  Chapters  22 
and  53  of  1849  contain  provisions  with  reference  to  the  Justices' 
Courts  of  Rochester  and  Hudson,  whilst  c.  196  and  514  of  the 
Laws  of  1851  have  reference  to  those  in  the  city  of  New  York. 
The  style  of  the  latter  tribunals  is  changed  from  Justices'  Courts 
to  District  Courts  by  c.  324  of  the  Laws  of  1852.  By  c.  65  of 
the  Laws  of  1854  an  additional  judicial  district  is  created.  In 
certain  respects,  such  as  the  form  of  summons  and  other  pro- 
ceedings not  expressly  provided  for  by  the  Code,  the  Marine 
Court  and  Justices'  Courts  of  New  York  are  governed  by  their 
own  statutory  practice,  and  not  by  that  prescribed  by  the  Re- 
vised Statutes  in  reference  to  justices'  courts  in  general.     See 


48  JUSTICES'  COURTS. 

Williams  v.  Price,  2  Sandf.  229;  Colin  v.  (hit,  3  C.  R  23;  Jack- 
son v.  Wheedon,  3  C.  E.  186;  Klenchv.  U%  Forest,  3  C.  K.  185, 
and  other  cases.  In  all  matters,  however,  which  are  regulated 
by  the  provisions  of  the  Code,  those  provisions  are  applicable  to 
all,  without  distinction.  See  sec.  68.  The  Marine  Court  have 
recently  issued  a  set  of  rules  for  the  government  of  their  practice 
in  various  respects,  and  particularly  with  regard  to  motions,  and 
the  hearing  of  arguments  before  the  general  term  under  the 
recent  extension  of  their  powers  in  this  respect. 

The  leading  characteristic  of  the  system  thus  established  is 
the  admissibility  of  oral  and  unverified  pleadings  in  all  cases, 
except  where  an  answer  of  title  being  in  question  has  been  put 
in ;  coupled  with  the  most  unlimited  powers  of  amendment  and 
disregard  of  mere  technical  objections. 

In  Turch  v.  Richmond,  13  Barb.  533,  it  was  even  held  that 
when  a  defence  before  a  justice  is  overruled  as  insufficiently 
pleaded,  he  is  bound  not  merely  to  allow,  but  to  order  the 
pleading  to  be  amended.  By  subdivision  15  of  section  64,  the 
provisions  of  the  Code  respecting  the  forms  of  and  parties  to 
actions,  the  times  of  commencing  them,  the  rules  of  evidence, 
and  the  service  of  process  on  corporations,  are  made  applicable 
to  these  courts ;  the  last  of  these  particulars  being  a  provision 
on  the  recent  amendments ;  but,  in  all  other  respects,  as  before 
adverted  to,  the  practice  in  them  is  totally  diverse  from  and  ir- 
reconcilable with  that  of  the  higher  courts,  as  established  by 
that  measure.  It  remains  to  notice  some  few  decided  points  in 
reference  to  that  practice,  which  may  bear  upon  the  exercise  of 
the  appellate  jurisdiction  of  the  courts  above.  In  Warren  v. 
I h  liner,  8  How.  419,  it  was  held  that  s.  399  of  the  Code,  re- 
quiring ten  days'  notice  to  be  given  of  the  examination  of  an 
i  witness,  was  not  "a  rule  of  evidence,"  and  was 
therefore  not  applicable  to  these  courts. 

The  jurisdiction  of  these  courts  being  of  a  limited  nature,  is 

abject   to  the  same  strict  rules  before  adverted  to, 

under  the  bead  of  county  courts.      The  mere  issuing  of  a  sum- 

-,  however,  prima  facie,  confers  jurisdiction;   and  if  such 

summons  !"•  served   within  the  limits  of  the  authority  of  the 

court,  Mir  presumption  will  lie  that  it  was  duly  served.     If  a 

warrant  I  I,  the  reverse  is  the  case,  and  the  lads  warrant- 

ing  il  in".!  all  !><•  Btrictly  proved.     Barnes  v.  Harris,  4 

,71.     No  presumption  will,  however,  be  admitted,  even 


JUSTICES'  COURTS.  49 

in  this  case,  to  oust  the  jurisdiction,  if  enough  be  shown  to  bring 
the  case  within  the  general  language  of  the  statute.  Foster  v. 
Hazen,  12  Barb.  547.  See  also  Van  Kirk  v.  Wilds,  11  Barb.  520. 
At  the  same  time,  the  jurisdictional  defect  for  want  of  proper 
service  of  summons  can  be  taken  advantage  of  on  appeal,  if 
sufficient  cause  be  shown ;  Fitch  v.  Devlin,  15  Barb.,  47.    ' 

The  justices'  courts  have  jurisdiction  in  actions  against  do- 
mestic, but  none  whatever  in  those  against  foreign  corporations. 
This  last  objection  is,  however,  capable  of  being  waived,  if  the 
defendants  appear  and  plead  to  the  merits,  without  insisting  on 
it.    Paulding  v.  Hudson  Mannf.  Co.,  3  C.  E.  223. 

A  certain  class  of  jurisdictional  objections  cannot  neverthe- 
less be  waived,  even  by  submitting  to  an  actual  trial.  As,  for 
instance,  in  an  action  brought  in  a  justices'  court,  where  judg- 
ment for  $200  was  claimed,  Bellinger  v.  Ford,  14  Barb.  250,  or 
the  bringing  the  action  against  a  non-resident  defendant  by  long 
summons,  contrary  to  the  statute,  Laws  of  1831,  p.  403,  ss.  33, 
47;  Robinson  v.  West,  11  Barb.  309;-  Cornell  v.  Smith,  2  Sandf. 
290,  there  cited;  see  also  Allen  v.  Stone,  9  Barb.  60.  See  as  to 
the  mode  of  obtaining  a  short  summons,  Waters  v.  Whitamore, 

13  Barb.  634.  Long  summons  is,  however,  prima  facie,  the  pro- 
per remedy  in  all  cases,  unless  the  contrary  is  shown.  Allen  v. 
Stone,  9  Barb.  60. 

,  In  Johnson  v.  Cayuga  and  Susquehanna  Railroad  Company,  11 
Barb.  621,  it  was  held  that  the  above  provision  could  not  be  held 
applicable  to  a  non-resident  corporation,  and  that  the  ordinary 
proceeding  by  long  summons  was  the  proper  course  in  such 
cases.  In  Sheriuood  v.  The  Saratoga  and  Washington  Railroad 
Company,  15  Barb.  650,  it  was  held  that  a  short  summons  issued 
against  such  a  corporation  was  a  nullity. 

The  mode  of  obtaining  the  cognate  remedy  of  attachment  is 
pointed  out  in  Vankirk  v.  Wilds,  11  Barb.  520.  It  would  seem 
that  the  deposition  required  for  the  purpose  of  obtaining  it  need 
not  be  in  writing,  but  may  be  oral ;  Baker  v.  Williams,  12  Barb. 
527 ;  though  the  former  is  the  more  convenient  course.  The 
appearance  of  the  defendant  on  the  return  of  an  attachment  super- 
sedes the  necessity  of  a  subsequent  summons.  Comvayv.  Hitchins, 
9  Barb.  378.  The  bond  required  by  the  statute  is  imperative,  and, 
if  omitted,  all  the  proceedings  will  be  void.     Davis  v.  Marshall, 

14  Barb.  96;  see  Bennett  v.  Brown,  4  Comst.  254, 1  C.  E.  (N.  S.) 
267,  there  cited.  See  also  Allen  v.  Stone,  9  Barb.  60.  A  formal  defect 

4 


50  JUSTICES'  COURTS. 

in  the  constable's  return  was  disregarded,  and  a  summons  subse- 
quently issued  and  sustained,  in  Rosenfieldv.  Howard,  15  Barb.  546- 

In  the  city  of  New  York,  where  the  jurisdiction  of  these 
courts  is  exercised  with  reference  to  the  different  wards  of  that 
city,  the  residence  of  one  party  within  a  ward  is  sufficient  to 
confer  jurisdiction  ;  but,  where  both  are  non-resident,  the  objec- 
tion will  be  fatal,  and  cannot  be  waived.  Murphy  v.  Mooney, 
2  Sandf..288;   Cornell  v.  Smith,  Id.  290. 

It  was  at  first  held  that  the  summons  must  of  necessity  state 
on  its  face  the  cause  of  action,  or,  if  not,  it  would  be  held  to  be 
a  nullity,  and  no  jurisdiction  would  be  conferred.  Ellis  v.  Merritt, 
2  C.  R  68 ;  Cooper  v.  Chamberlain,  2  C.  R  142.  This  view  has 
however  been  distinctly  overruled  in  Cornell  v.  Bennett,  11  Barb. 
657,  (see  also  Park  v.  Hitchcock,  there  cited  in  note,)  and  Smith 
v.  Joyce,  12  Barb.  21.  The  defect,  it  was  held  in  the  former  case, 
is  amendable,  and  one  that  will  be  waived  by  the  defendant's 
failure  to  appear  and  object  when  the  case  is  called. 

The  summons  must  not  be  for  a  shorter  term  of  notice  than 
that  prescribed  by  statute,  King  v.  Dowdall,  2  Sandf.  131 ;  and 
the  service  of  it  must  be  properly  and  duly  authenticated.  Man- 
ning v.  Johnson,  7  Barb.  457.  The  two  last  defects  will,  how- 
ever, be  waived  by  appearance  and  answer  without  objection. 
Heilaer  v.  Barras,  3  C.  R  17.     Robinson  v.  West,  1  Sandf.  19. 

Service  of  the  summons  on  one  defendant  will  authorize  the 
entry  of  judgment  against  others  jointly  sued  in  contract.  Fogg 
v.  Child,  13  Barb.  246.  In  actions  for  a  tort,  however,  the  con- 
trary is  the  case,  and  judgment  so  entered  will  be  altogether 
void.  Farrdl  v.  Calkins,  10  Barb.  348.  It  would  seem  that  the 
justice  may  deputize  a  competent  party  to  effect  such  service  in 
lieu  of  the  regular  constable.  Monteith  v.  Cash,  10  L.  0.  348.  See 
BarrodaiU  v.  Leek,  9  Barb.  611.  lie  cannot  however  dele- 
gate  any  part  of  his  general  official  authority,  and,  if  he  do  so, 
the  acts  of  such  deputy  will  be  void. 

Objections  in  the  nature  of  a  demurrer  must  be  raised  by  the 
pleadings,  or  theycannol  be  taken  afterwards.  Jackson  v.  W/iee- 
.;<'.  I:.  L86.  ')n  the  same  principle,  a  plea  of  the  general 
i  beld  to  be  sufficient  on  which  to  ground  the  introduc- 
tion of  any  testimony  at  the  trial,  where  no  objection  was  made 
to  it  lor  want  of  certainty,  at  the  time  of  the  joinder  of  issue. 
Burfee  v.  EveUend,  8  Barb.  L6. 

If  the  complainl  be  demurrable,  the  defendant  must  object  to 


JUSTICES'  COURTS.  51 

it  at  once  in  that  form.  If  he  take  issue  upon  it,  he  cannot  after- 
wards object  to  it  on  appeal,  on  formal  grounds.  Neff  v.  Clute, 
12  Barb.  466.  And.  even  if  a  demurrer  have  been  taken  and 
overruled,  the  defendant,  by  putting  in  an  answer,  will  waive  the 
objection,  and  the  appellate  court  cannot  in  such  cases  review 
the  decision  on  the  demurrer.  Irvine  v.  Forbes,  11  Barb.  587. 
The  principle  that  the  court  may  disregard  all  matter  in  abate- 
ment, where  the  defendant  relies  on  the  merits,  is  also  laid  down 
in  Monteith  v.  Gash,  10  L.  0.  318. 

The  Code  does  not  authorize  the  joinder  of  causes  of  action  on 
contract  and  in  tort  in  the  same  complaint  in  these  courts,  any 
more  than  in  courts  of  record.  The  remedy  in  such  case  is  to 
require  the  plaintiff,  upon  joining  issue,  or  before  proceeding 
to  trial,  to  elect  to  which  class  of  actions  he  will  be  confined. 
Burdick  v.  McAmbly,  9  How.  117. 

A  plea  of  payment  or  set-off  in  these  courts,  is  an  admission 
of  the  plaintiff's  case,  nor  can  the  latter  be  contested  under  such 
circumstances,  if  the  defence  on  the  above  grounds  fails.  De 
Courcy  v.  Spalding,  3  C.  R.  16;  Young  v.  Moore,  2  C.  R.  143. 
In  Everitt  v.  Lish,  1  C.  R.  71,  a  refusal  to  answer  was  held  to  be 
an  admission  of  the  plaintiff's  claim,  and  to  preclude  the  defend- 
ant from  his  right  to  a  cross-examination.  This  decision  was, 
however,  under  the  Code  of  1848,  prior  to  the  establishment  of 
the  present  rules  by  sec.  64. 

The  plaintiff  cannot  take  judgment  by  default,  without  prov- 
ing his  case ;  Muscott  v.  Miller,  6  L.  0.  423 ;  Smith  v.  Falconer, 
1  C.  R.  120 ;  2  Sandf.  640 ;  a  point  indeed  clear  on  the  terms  of 
the  section  itself.  Nor  can  he,  under  any  circumstances,  take 
judgment  for  an  amount  greater  than  that  mentioned  in  the  sum- 
mons. Partridge  v.  Thayer,  1  C.  R.  85 ;  2  Sandf.  227.  A  judg- 
ment taken  on  the  plaintiif 's  default  to  furnish  a  bill  of  particu- 
lars was  held  to  be  bad,  under  the  Code  of  1848,  in  Winslow  v. 
Kiershi,  2  Sandf.  304,  but  the  amended  measures  contain  special 
provisions  on  this  subject. 

In  Mills  v.  Winslow,  3  C.  R.  44,  it  was  held  that  an  action  on 
the  judgment  of  an  Assistant  Justice's  Court,  brought  without 
the  leave  prescribed  by  sec.  71,  could  not  be  maintained ;  the 
judge  treating  those  courts,  and  also  the  Marine  and  Assistant 
Justices'  Courts  of  New  York,  as  not  within  the  definition  of 
"Courts  of  a  Justice  of  the  Peace."  See  also  (John  v.  Coit,  3 
C.  R,  23.     In  McGuire  v.  Gallagher,  2  Sandf.  402,  1  C.  R.  127,  a 


52  JUSTICES'  COURTS. 

contrary  view  is  taken  on  this  point,  and  it  was  also  held  that 
the  restrictions  in  sec.  71  are  in  no  manner  retrospective,  in  re- 
lation to  causes  of  action  accrued  before  the  passage  of  the  Code. 

The  ordinary  principles  of  law  with  reference  to  the  regular 
conducting  of  a  trial  by  jury,  are  applicable  to  those  taking 
place  in  these  courts.  In  Bell  v.  Davis,  8  Barb.  210,  a  judgment 
was  accordingly  reversed  because  the  minutes  of  counsel  had 
been  laid  before  the  jury.  Where,  however,  at  the  request  of 
the  parties,  the  justice  went  into  the  jury-room,  while  they  were 
deliberating  on  their  verdict,  a  consent  that  he  should  read  cer- 
tain testimony  to  them  was  implied  ;  Hancock  v.  Salmon,  8  Barb. 
564;  nor  will  the  due  exercise  of  the  justice's  discretion  on  the 
trial  be  interfered  with,  as,  for  instance,  his  refusal  to  allow  ad- 
ditional evidence  to  be  taken,  after  a  motion  for  a  nonsuit.  Reed 
v.  Barber,  3  C.  R.  160. 

The  justice  cannot,  it  seems,  receive  the  verdict  of  the  jury  in 
the  absence  of  the  plaintiff;  and,  if  he  does  so,  his  judgment 
will  be  reversed.  Douglass  v.  Blackman,  14  Barb.  381.  Where, 
however,  the  justice  returned  that  the  jury  delivered  their  ver- 
dict to  him  in  court,  it  will  be  inferred  that  it  was  done  regu- 
larly, though,  prima  facie,  the  circumstances  seemed  inconsistent. 
Beattie  v.  Qua,  15  Barb.  132. 

The  judgment  of  a  justice  on  questions  of  fact  is,  as  a  gene- 
ral rule,  conclusive,  as  in  other  similar  cases.  Adsit  v.  Wilso7i, 
7  How.  64 ;  Kasson  v.  Mills,  8  How.  377.  And,  in  reviewing 
such  judgments  in  general,  immaterial  errors  will  be  overlooked. 
Dunckle  v.  Kocker,  11  Barb.  387;  Buck  v.  Waterbury,  13  Barb. 
116. 

The  justice  is,  by  statute,  bound  to  give  his  judgment  within 
four  days  after  the  hearing  of  the  cause.  In  Bissell  v.  Bissell,  11 
Barb.  96,  it  was  held  that,  contrary  to  the  rules  of  practice  in 
ordinary  cases,  Sunday  is  not  excluded  from,  but  included  in 
the  computation.  A  judgment  rendered  on  Monday,  Sunday 
ig  tin;  fourth  day  in  that  case,  was  accordingly  held  to  be 
Void,  as  not  being  entered  in  due  season. 

In  these  OOUrta,  the  strict  rules  which  bind  the  judges  of  the 
higher  tribunals,  do  not  prevail;  and,  therefore,  tin:  partner  or 
clerk  of  tin-  justice  may  practice  before  him.  Fox  v.  Jackson,  8 
Barb.  855. 

Tin',  judgment  I  of  these  courts  are  enforceable  by  process 
issued   under  their  authority,  according  to  the  powers  conferred 


JUSTICES'  COURTS.  53 

on  them  by  the  Eevised  Statutes,  (such  powers  embracing  that 
of  arrest  in  many  cases,)  but  those  judgments  are  not  liens  upon 
real  estate,  unless  transcripts  of  them  are  docketed  in  the  office 
of  the  clerk  of  the  county,  as  prescribed  in  sec.  63,  and  unless 
for  sums  exceeding  $25.  The  delivery  of  such  a  transcript  on 
the  part  of  the  justice  is  compulsory,  and  may  be  enforced  by 
mandamus.  From  the  time  of  docketing,  they  become  in  effect 
judgments  of  the  County  Court,  and  are  in  all  respects  enforce- 
able as  such.  It  would  seem  though  that,  in  one  respect,  they 
acquire  no  greater  weight  by  this  process,  but  still  remain  on 
the  footing  of  judgments  of  inferior  courts;  and  that  the  lien 
on  them,  unless  revived,  will  accordingly  cease  at  the  expira- 
tion of  six  years.  Young  v.  Hemes,  4  Barb.  442.  See  2  E.  S. 
359,  sec.  5.  As  regards  the  statute  of  limitations,  however,  all 
judgments  whatever  seem  now,  by  sec.  90  of  the  Code,  to  be 
placed  on  an  equal  footing.  The  transcript  must  correspond 
with  the  judgment  in  all  respects,  or  the  docketing  will  be  void, 
nor  can  any  material  variance  be  either  amended  or  disregarded 
by  the  court  above.  Simpkins  v.  Page,  1  C.  E.  107.  A  defect 
in  the  issuing  of  execution,  on  the  ground  that  the  judgment 
had  not  been  properly  docketed,  was,  however,  held  in  Roth  v. 
Schloss,  6  Barb.  308,  to  be  amendable,  and  the  judgment  was  there 
allowed  to  be  docketed  nunc  pro  tunc. 

In  Bander  v.  Burly,  15  Barb.  604,  it  was  held  that  the  pro- 
visions of  the  Eevised  Statutes,  in  relation  to  the  dates  at  which 
executions  from  these  courts  were  made  returnable,  are  repealed 
by  the  Code ;  and  that  the  period  of  sixty  days,  prescribed  by  the 
latter  measure,  now  applies  in  all  cases.  The  provisions  under 
the  former  law  in  relation  to  the  subsequent  renewal  of  those 
executions,  and  the  periods  for  which  renewal  may  be  made, 
were  held  on  the  contrary  to  be  still  in  force,  and  to  govern 
executions  of  this  nature  after  the  period  of  the  original  return. 
The  appeal  from  all  these  tribunals  lies,  as  before  stated,  to  the 
county  courts,  or,  in  New  York,  to  the  Court  of  Common  Pleas 
of  that  city. 


54  ACTIONS  IN  GENERAL. 


BOOK    II. 

OF   ACTIONS   GENERALLY   CONSIDERED. 


CHAPTER  I. 

OF   ACTIONS   IN    GENERAL. 


§  24.   General  Definitions. 

The  Code,  in  s.  1,  classes  remedies  in  courts  of  justice  under 
the  two  heads  of  actions  and  special  proceedings,  giving  in  s.  2 
and  3  the  following  definitions  of  each : 

§  2.  An  action  is  an  ordinary  proceeding  in  a  court  of  justice,  by 
which  a  party  prosecutes  another  p arty,  for  the  enforcement  or  protec- 
tion of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the  punishment 
of  a  public  offence. 

§  3.    Every  other  remedy  is  a  special  proceeding. 

It  then  proceeds,  in  sections  5  and  6,  to  draw  the  distinctions 
between  civil  and  criminal  actions;  declaring  in  section  7,  that 
when;  the  violation  of  a  right  admits  of  both  a  civil  and  criminal 
remedy,  the  right  to  prosecute  the  one  is  not  merged  in  the 
other. 

These  provisions  are,  in  substance,  little  more  than  declara- 
tory of  tin;  old  and  inherent  distinctions  between  ordinary  and 
special  proceedings,  and  likewise  between  those  appertaining  to 
civil,  in  contradistinction  to  criminal  jurisdiction.  With  the 
exercise  of  the  latter,  the  Code,  as  it  now  stands,  has  no  con- 
cern, and  therefore  the  Bubject  may  beat,  once  and  permanently 
dismissed,  merely  drawing  the  reader's  attention  to  section  7, 
above  cited,  under  which   both  civil  and  criminal  proceedings 


ACTIONS  IN  GENERAL.  55 

are  capable  of  being  taken  in  conjunction  with  each  other,  in 
relation  to  the  same  act,  or  state  of  circumstances. 

The  boundaries  between  ordinary  actions  and  special  pro- 
ceedings are  less  capable  of  accurate  definition,  and  many  of 
the  measures  which  will  hereafter  be  treated  of  in  connection 
with  the  due  prosecution  of  the  former,  are,  perhaps,  strictly 
considered,  rather  of  the  latter  nature ;  as,  for  instance,  pro- 
ceedings supplementary  to  execution,  (see  Davis  v.  Turner,  4 
How.  190;  Dunham  v.  Nicholson,  2  Sandf.  636,)  and  other 
similar  steps  in  the  ordinary  assertion  of  the  remedies  ob- 
tainable by  action.  In  practice,  however,  this  distinction  is 
unimportant. 

§  25.    Alternative  Remedies  and  Special  Proceedings. 

There  exists,  likewise,  in  relation  to  real  estate,  a  certain 
class  of  proceedings  of  a  mixed  nature,  and  which  may  be 
originated  and  carried  on,  either  in  the  form  of  an  action,  or  in 
that  of  a  special  proceeding,  and  under  the  forms  of  either  the 
old  or  new  practice,  at  the  election  of  the  parties.  Of  this  nature 
are  proceedings  for  partition.  See  Watson  v.  Brigham,  8  How- 
290;  1  G.R  67;  Backus  v.  Stilwell,  3  How.  318,  1  0.  E.  70;  Traver 
v.  Traver,  3  How.  351 ;  1  C.  E.  112 ;  Myers  v.  Rasbach,  4  How.  83, 
2  C.  E.  13;  Bow  v.  Row,  4  How.  133, — and  various  other  cases 
subsequently  cited  under  that  head ;  and  likewise  those  for  the 
admeasurement  of  dower,  see  Townsend  v.  Townsend,  2  Sandf. 
711.  Proceedings  to  compel  the  determination  of  conflicting 
claims  to  real  property  would  seem,  however,  not  to  fall  within  • 
this  class,  but  to  belong  to  that  of  strictly  special  proceedings, 
notwithstanding  the  provisions  of  the  Code  to  the  contrary  in 
section  449.     Crane  v.  Sawyer,  5  How.  372,  1  C.  E.  (N.  S.)  30. 

The  different  special  proceedings  which  may  be  taken  during 
the  ordinary  course  of  an  action,  will  be  treated  of  in  due 
course  in  connection  therewith;  and  those  prescribed  by  the 
Code  itself  in  reference  to  the  preliminary  settlement  of  con- 
troversies, Avill  form  the  'Subject  of  an  introductory  chapter. 
The  remedies  unconnected  with  the  ordinary  progress  of  a 
suit,  and  obtainable  under  special  statutory  provisions,  will  be 
shortly  noticed  at  the  conclusion  of  the  work ;  but,  in  accord- 
ance with  its  general  plan,  they  will  not  be  entered  upon  in 
detail,  inasmuch  as  they  are  governed  in  all  respects  by  the 


56  ACTIONS  IN  GENERAL. 

forms  of  the  Revised  Statutes,  or  other  independent  enactments 
on  the  subject,  and  by  the  rules  of  the  former  practice. 

§  26.    General  Observations 

By  the  preamble  to  the  Code,  the  then  present  forms  of 
actions  and  pleadings  in  cases  at  common  law,  and  the  dis- 
tinction between  legal  and  equitable  remedies,  are  entirely 
abolished ;  and,  with  that  abolition,  the  multiplicity  of  nice  and 
subtle  distinctions  between  the  different  forms  of  actions,  which 
formed  so  distinguishing  a  feature  of  the  old  practice,  together 
with  the  numerous  and  intricate  questions  of  law  connected 
therewith,  are  at  once  and  for  ever  annihilated.  By  the  same 
preamble,  when  read  in  connection  with  the  provisions  of  sec- 
tion 69,  the  formal  lines  of  demarcation  between  legal  and 
equitable  remedies,  and  between '  actions  at  law  and  suits  at 
equity,  together  with  the  previously  existing  forms  in  those 
actions  or  suits,  are  likewise  completely  swept  away ;  and  one 
uniform  course  of  proceeding  in  all  cases,  whether  in  relation 
to  the  enforcement  of  private  rights,  or  to  the  redress  of  private 
wrongs,  to  be  taken  in  one  single  form  of  action,  denominated 
a  civil  action,  is  distinctly  and  in  terms  established  in  their 
stead.  By  these  provisions,  the  main  features  of  the  ancient 
and  complex  system,  together  with  the  numerous  distinctions 
and  conflicts  of  jurisdiction,  incident  to  the  administration  of 
law  and  equity  by  separate  tribunals,  are,  beyond  question, 
entirely  superseded. 

It  is  impossible,  indeed,  to  conceive  a  more  complete  and  rad- 
ical abolition  of  the  ancient  forms  and  practice,  than  that  effect- 
ed by  these  provisions;  and,  so  far  as  matters  of  form  alone  are 
concerned,  the  conclusion  to  be  drawn  from  them  is  irresistible. 
Although,  however,  the  preamble  seems  to  contemplate  the 
abolition  of  all  distinction  between  legal  and  equitable  remedies 
i,  that  abolition  is,  to  some  extent,  and  must  always  con- 
tinue, impracticable.  The  Code  itself,  in  numerous  respects, 
and  particularly  in  the  institution  of  two  different  forms  of 
summons,  and  tin-  enabling  provisions  for  the  trial  of  causes  by 
the  court,  contains  ;i  practical  recognition  of  the  separate  na- 
ture of  i  o  branches  of  jurisdiction,  which  the  preamble 
in  terms  profe  e  i"  amalgamate.  The  mere  common  law  or 
statutory  action,  involving  ;i  simple  recovery  upon  a  simple  and 


ACTIONS  IN  GENERAL.  57 

certain  issue ;  and  the  complicated  decree  in  chancery,  embrac- 
ing: the  concurrent  dealing  with  a  combination  of  intricate  and 
often  conflicting  rights,  and  the  adaptation  of  proportionate 
relief  in  respect  of  those  rights  generally  considered,  are,  in 
their  very  essence,  so  completely  diverse,  that  no  human  wisdom 
could  establish  any  one  uniform  system,  which  would  complete- 
ly adapt  itself  to  both  these  states  of  circumstances,  or  under 
which  adequate  justice  could  be  meted  out  in  every  case  aris- 
ing under  them.  As  regards  certain  general  principles,  all 
good  pleading,  whether  legal  or  equitable,  has  always  been 
substantially  subject  to  similar  rules ;  and,  under  the  new  sys- 
tem, those  general  principles  are  now  of  far  wider  scope  and 
far  more  general  adaptability  ;  but  still  there  must  ever  remain 
a  wide  and  irreconcilable  difference  between  the  statements 
on  which  a  mere  money  recovery  may  be  obtained,  and  those 
which  are  requisite  in  order  to  ground  a  title  to  special  or  con- 
flicting relief,  under  a  more  complicated  state  of  circumstances. 
This  branch,  of  the  subject  is,  however,  so  fully  considered 
hereafter,  in  that  portion  of  the  work  devoted  to  the  considera- 
tion of  pleading  in  a  general  point  of  view,  in  which  the  different 
cases  on  the  subject  will  be  found  cited  in  detail,  that  it  would 
be  superfluous  to  dwell  further  upon  it  for  the  present. 

Though  abolished  in  form,  the  old  classification  of  actions 
arising  ex  contractu  or  ex  delicto,  still  practically  subsists,  so  far 
at  least  as  regards  the  nature  of  the  remedies  obtainable  in  such 
actions ;  and,  with  reference  to  the  nature  of  the  relief  to  be 
granted,  and  of  the  statutory  limitations  imposed,  an  equally 
broad  line  of  demarcation  may  still  be  drawn  between  actions 
in  relation  to  the  recovery  of  real  estate,  or  to  the  enforcement 
of  claims  upon  property  as  such,  and  those  where  the  relief  sought 
for  is  capable  of  being  represented  by  a  simple  money  payment. 
It  would,  however,  be  a  superfluous  anticipation  to  enter  at  this 
juncture  into  the  details  of  these  distinctions,  which  will  be  duly 
drawn  and  commented  upon,  when  different  proceedings  in  such 
actions  are  brought  under  consideration. 

The  question  as  to  how  far  the  provisions  of  the  Code  are  or 
are  not  retrospective,  in  relation  to  proceedings  in  actions  or 
suits  commenced  before  its  passage,  will  be  found  fully  consi- 
dered in  the  concluding  chapter  of  the  work. 


58  PARTIES  TO  AN  ACTION. 

CHAPTER     II. 

OF    THE    PARTIES    TO    AN    ACTION. 

§  27.  General  Principles  as  to. 

By  the  provisions  of  the  Code,  the  old  common  law  doctrine 
with  respect  to  parties  is  in  effect  superseded,  and  the  rules 
which  prevailed  in  equity  substituted,  with  scarcely  any  modi- 
fication. See  Wallace  v.  Eaton,  5  How.  99, 3  C.  E.  161,  and  Hollen- 
beckv.  Van  Valhmburgh,  5  How.  281 ;  1  C.E,  (N.S.)  33.  In  some 
few  cases,  however,  the  old  common  law  principles  have  been 
upheld,  as  in  The  Merchants'  Mutual  Insurance  Company  v.  Eaton, 
11  L.  0. 140,  with  reference  to  the  assignment  of  a  cause  of  action 
in  tort ;  and  Spencer  v.  Wheelock,  11  L.  0.  329,  where  it  was  held 
that  parties  liable  for  the  same  debt  under  different  contracts 
could  not  be  joined  in  the  same  action.  See  also  De  Bidder  v. 
Schermerhom,  10  Barb.  638. 

The  intentions  of  the  commissioners  of  practice  and  pleading 
in  framing  these  provisions,  may  thus  be  stated  in  their  own 
words,  taken  from  page  123  of  their  report : 

"  The  rules  respecting  parties  in  the  courts  of  law,  differ  from  those 
in  the  courts  of  equity.  The  blending  of  the  jurisdiction  makes  it  neces- 
sary to  revise  these  rules  to  some  extent.  In  doing  so,  we  have  had  a 
three-fold  purpose  in  view  ;  first,  to  do  away  with  the  artificial  distinctions 
existing  in  the  courts  of  law,  and  to  require  the  real  party  in  interest  to 
appear  in  court  as  such ;  second,  to  require  the  presence  of  such  parties 
try  to  make  an  end  of  the  controversy  ;  and,  third,  to  allow 
othei  ititude  in  respect  to  the  number  of  parties  who  may 

!«•  brought  in." 

equitable  interest  is,  accordingly,  with  very  few  and 
tions,  the  grand  criterion  as  to  who  arc,  or  are  not, 
the  m  '■•  proper  parties  to  a  proceeding,  of  whatever 

nature;  and  it  is,  therefore,  indispensable  that  the  doctrine  of 
the  former  Courts  of  Chancery  in  relation  to  this  subject  should 
be  carefully  studied;  without  which  study, though  the  practice 
in  ordinary  cases  may  be  easily  understood,  the  principles  which 


PARTIES  TO  AN  ACTION.  59 

govern  that  practice  cannot.  Safer  guides  cannot  be  taken  in 
this  respect  than  Mr.  Edwards'  valuable  work  on  Parties,  and 
the  3d  and  4th  chapters  of  Story's  Commentaries  on  Equity 
Pleading;  to  which,  and  to  the  many  elementary  and  other 
treatises  on  the  same  subject,  the  reader  is  accordingly  referred. 
The  remaining  considerations  upon  it  will,  therefore,  be  simply 
confined  to  a  general  definition  of  the  parties  who,  under  the 
former  practice,  might  or  might  not  sue,  or  be  sued ;  with  a 
notice  in  detail  of  the  different  provisions  of  the  Code  in  relation 
thereto,  and  of  the  decided,  cases  with  reference  to  those  pro- 
visions. The  ancient  nomenclature  of  plaintiff  and  defendant- 
is  expressly  continued  by  sec.  70. 

This  chapter  naturally  divides  itself  into  two  separate  and 
independent  branches.  First,  as  to  parties  plaintiffs,  and  second, 
as  to  parties  defendants ;  which  will  be  accordingly  considered 
seriatim. 

§  28.   General  Rules  as  to  Parties  Plaintiffs. 

With  reference  to  the  plaintiffs  in  an  action,  the  old  equitable 
doctrine  still  prevails  on  the  following,  amongst  many  other, 
subjects,  which  will  be  found  fully  treated  of  in  the  works  before 
referred  to. 

Joint  and  several  Contracts.] — An  action  upon  a  joint  contract 
must  be  brought  in  the  names  of  all  the  parties  thereto,  or  in 
those  of  the  survivors,  if  the  cause  of  action  survive;  but  if  the 
contract  be  of  a  several  or  severable  nature,  any  of  the  parties,  or 
the  representatives  of  any  who  are  in  the  same  interest,  may  sue, 
either  in  conjunction  or  severally,  at  their  election. 

Aliens.'] — Aliens  in  general  are  competent  to  sue;  but  see 
observations  in  a  previous  part  of  the  work  as  to  the  jurisdiction 
of  the  federal  courts. 

An  alien  enemy,  whilst  he  remains  such,  is  not ;  nor  does  the 
statute  run  against  him,  sec.  103.  A  criminal,  while  under 
sentence,  is  in  like  manner  disqualified  from  suing. 

Corporations.] — Corporations  and  joint-stock  companies  may 
sue  or  be  sued  by  the  names,  and  under  the  forms  prescribed  in 
the  laws  authorizing  their  incorporation.  See  as  to  the  latter, 
Laws  of  1849,  c.  258. 


60  PARTIES  TO  AN  ACTION. 

Heirs  and  Executors] — In  cases  where  real  estate  of  a  deceased 
party  is  in  question,  the  heir  is  the  party  entitled  to  sue  as  to 
the  realty,  and  the  executor  or  administrator  in  respect  of  rents 
become  due,  or  damages  accrued  thereto,  during  the  life  of  the 
deceased. 

In  all  cases  arising  out  of  the  personal  estate  of  a  deceased 
party,  the  executor  or  administrator  is  of  course  the  proper  party 
to  sue ;  so  also  in  an  action  to  recover  compensation  for  death 
by  a  wrongful  act,  under  laws  of  1849,  c.  256. 

•  Joint  Wrong.] — Where  an  action  is  brought  in  respect  of  a 
joint  wrong,  each  party  injured  must  sue  separately,  except  where 
the  injury  is  one  to  partners,  as  such,  or  the  action  is  for  slan- 
der of  title. 

Principal  and  Agent] — In  all  cases  of  agency,  the  principal 
must  sue,  and  not  the  agent,  unless  the  agent  is  personally  inter- 
ested, and  the  former  may  sue  on  a  contract  made  for  his  benefit, 
though  in  the  agent's  own  name.  Erickson  v.  Compton,  6  How.  471. 

Lunatics,  <£c] — The  committee  of  a  lunatic,  idiot,  or  habitual 
drunkard,  may  sue  in  all  cases  where  he  is  authorized  by  statute, 
see  laws  of  1845,  c.  112,  sec.  2 ;  2  E.  S.,  third  edition,  p.  115 ; 
but,  in  all  other  cases  where  this  authority  is  not  expressly  given 
by  statute,  the  action  must  be  brought  in  the  name  of  the  luna- 
tic or  idiot,  by  his  next  friend,  or,  it  would  seem,  in  the  case  of 
an  habitual  drunkard,  by  that  party  himself.  See  M'Killip  v. 
M'Killip,  8  Barb.  552.  In  Person  v.  Warren,  14  Barb.  488,  it 
was  held  that  a  committee  might  maintain  an  action  in  his  own 
name,  but  for  the  benefit  of  the  lunatic,  for  the  purpose  of  set- 
ting aside  a  deed  improvidently  executed  by  the  latter,  nothow- 
ever  strictly  as  committee,  but  as  trustee  of  an  express  trust 
corning  within  the  scope  of  the  enabling  provisions  in  sec. 
1  L8.  Ee  cannot,  liowever,  by  any  act  of  his,  affirm  and  sue 
upon  the  lunatic's  contract,  but  must  first  obtain  the  direction  of 
the  court.   Fitzhugh  v.  Wilcox,  12  Barb.  235. 

Before  a  committee  ''an  sue  as  such,  he  must  obtain  the  author- 
ity of  the  court. 

Lunatics,  idiots,  and  married  women  must  sue  by  their  next 
friend,  and  infanl  i  by  their  guardians,  in  all  cases,  except  those 
specially  provided  for  by  statute 


PARTIES  TO  AN  ACTION.  61 

Parents  or  Masters.'] — A  party  standing  in  either  of  these  capa- 
cities may  sue  in  his  own  name,  in  respect  of  an  injury  to  his 
child  or  servant,  " per  quod  servitium  amisit."  He  cannot,  how- 
ever, maintain  such  an  action  unless  he  proves  some  pecuniary  loss 
accrued  to  him.  Stephenson  v.  Hall,  14  Barb.  222.  The  right  of  a 
parent  to  the  custody  of  his  infant  children  was  maintained  by 
the  Supreme  Court  in  The  People  v.  Cooper,  8  How.  288.  The 
putative  father  of  an  illegitimate  child  has  however  no  right  to 
its  custody ;  that  right  rests  on  the  contrary  with  the  mother. 
Bobalinda  v.  Armstrong,  15  Barb.  247. 

States.] — The  State  is  competent  to  sue  by  its  proper  officer, 
and  foreign  states  or  potentates  labor  under  no  disqualification 
as  such. 

Parceners.] — Coparceners  must  sue  jointly,  except  in  reference 
to  a  partition,  but  tenants  in  common  may  sue  either  jointly  or 
severally,  at'  their  election. 

Limited  Partnership.] — In  cases  of  limited  partnership,  under 
the  provisions  of  Part  II.  E.  S.,  chap.  IV.  title  I. ;  1  R.  S.  763 
to  768,  the  acting  general  partners  alone  are  the  proper  plain- 
tiffs. 

Ministerial  Officers.] — Receivers,  sheriffs,  and  all  other  parties 
exercising  ministerial  powers  under  the  special  appointment  of 
the  courts,  in  order  to  the  realization  of  property,  or  the  collec- 
tion of  its  proceeds,  may  sue,  as  such,  in  their  own  names.  A 
similar  rule  applies,  as  of  course,  to  public  officers  specially  em- 
powered to  sue  as  such  by  statute.  See  Wright  v.  Smith,  13  Barb. 
414 ;  Holmes  v.  Brown,  13  Barb.  599  ;  Fuller  v.  Fidlerton,  14 
Barb.  59. 

Suit  in  forma  pauperis^] — A  plaintiff  without  adequate  means, 
may  sue  in  formd  pauperis  under  the  provisions  of  the  Revised 
Statutes  before  referred  to,  and,  in  this  case,  he  cannot  be  required 
to  give  security  for  costs  :  he  must  however  sue  as  such  ab  initio. 
Florence  v.  Bulkley,  12  L.  O.  28 ;  1  Duer,  705. 

§  29.  Parties  Plaintiffs,  Rules  under  Code. 

We  now  come  to  the  different  matters,  in  respect  of  which 


62  PARTIES  TO  AN  ACTION. 

the  Code  lias  either  altered  or  defined  the  previously  existing 
rules  upon  the  subject. 

Real  Party  in  Interest] — The  first  provision  to  be  noticed  is  that 
in  section  113,  under  which,  with  the  exception  of  actions  by- 
executors  or  trustees  as  such,  every  action  must  be  brought  in 
the  name  of  the  real  party  in  interest :  establishing,  as  before 
stated,  the  equitable  doctrine  as  to  parties,  in  contradistinction 
to  that  formerly  prevailing  at  common  law. 

It  will  be  seen  that,  by  this  section,  the  old  common  law  doc- 
trine as  to  a  chose  in  action  being  incapable  of  assignment,  is 
done  away  with,  and  the  assignee  is  now  the  proper  party,  and 
the  only  proper  party,  to  sue  thereupon,  in  all  cases  arising  out 
of  contract.     See  Combs  v.  Bateman,  10  Barb.  573. 

The  assignee  of  a  portion  of  an  entire  demand  may  main- 
tain an  action  in  the  nature  of  a  suit  in  equity  to  recover  his 
part ;  nor  will  the  objection  avail  as  a  defence,  that  others  stand- 
ing in  the  same  position  have  been  satisfied.  Cook  v.  Genesee 
Mutual  Insurance  Company,  8  How.  514. 

By  the  last  amendment  of  the  Code,  the  assignment  of  causes  of 
action  arising  out  of  tort  is  prohibited  for  the  future.  See  Hodg. 
man  v.  Western  Railroad  Corporation,  7  How.  492 ;  Merchants' 
Mutual  Insurance  Company  v.  Eaton,  11  L.  0.  140.  In  the  Code 
of  1849  no  such  provision  was  contained,  and  in  Kellogg  v. 
Church,  3  C.  E.  53,  it  was  held  that  such  a  cause  was  assignable, 
and  that  an  action  might  be  maintained  by  the  assignee;  but  of 
course  this  proposition  is  now  no  longer  law.  It  would  seem 
from  the  case  of  Hall  v.  Robinson,  2  Comst.  293,  that  though  a 
right  of  action  in  trover  for  a  chattel  is  not  assignable,  a  subse- 
quent purchaser  of  the  chattel  itself  may  reclaim,  and  bring  an 
action  to  recover  it  in  his  own  name. 

I  n  /'A-  (hiii'lni  Iluik  y.  Rodgers,  4  How.  63,  2  C.  E.  45,  it  was 
held  that  u  bank  might  sue  in  its  own  name,  as  real  holders  of 
;i  cote  made  payable  to  their  cashier's  order,  and  never  regu- 
lar!. !  !'-.  Iiiin.  In  Lanev,  The  Columbus  Insurance  Com- 
/>  \nys  "1  C.  I«. < 15,  the  same  principle  was  carried  still  further,  and, 
alth  policy  there  in  question  was  effeoted  by  an  agent 
in  his  own  name,  and  with  a  clause  that  the  loss,  if  any,  was  to 
1).:  paid  t."  him  (the  agent)  "only"  the  principal  was,  neverthe- 
beld  to  be  entitled  to  maintain  an  action  upon  it.    In  Bos 


PARTIES  TO  AN  ACTION.  (33 

v.  Seaman,  2  C.  R  1,  the  judge  "inclined  to  the  belief"  that,  not- 
withstanding these  provisions,  bonds  taken  in  the  name  of  the 
people  of  the  State  ought  still  to  be  so  prosecuted,  and  not  in 
the  name  of  the  real  party  in  interest;  but  this  opinion  is  so 
doubtfully  pronounced,  and  appears  so  contrary  to  the  general 
spirit  of  the  measure,  that  it  can  be  scarcely  considered  as  of 
positive  authority.  In  Hoogland  v.  Hudson,  however,  8  How. 
343,  it  was  held  that  the  same  provisions  were  inapplicable  to 
suits  by  official  persons  in  their  name  of  office,  under  special 
authority  conferred  by  statute,  who  were  there  looked  upon  as 
trustees  of  an  express  trust  within  the  scope  of  sec.  113. 

It  will  be  seen  that,  by  section  112,  the  rights  of  the  opposite 
party  to  interpose  any  defence,  by  set-off  or  otherwise,  in  re- 
spect of  a  chose  in  action  sued  upon  by  the  assignee,  are  made 
the  subject  of  express  reservation.  In  the  event  of  any  defence 
of  this  nature  being  set  up,  it  would  seem  that  the  assignor 
ought  then  to  be  made  a  party  by  amendment,  in  order  that  the 
controversy' between  him  and  the  original  defendant  maybe 
brought  to  an  issue ;  though,  otherwise,  it  would  be  neither  ne- 
cessary nor  proper  to  include  him  in  the  action,  inasmuch  as, 
under  ordinary  circumstances,  he  neither  seeks  relief  himself, 
nor  is  relief  sought  against  him.  The  law,  as  it  previously 
stood,  in  respect  to  the  exemption  from  this  restriction  of  nego- 
tiable promissory  notes  or  bills  transferred  bond  fide  and  before 
maturity,  is  expressly  declared  at  the  end  of  the  section. 

Executors.'] — By  sec.  113,  the  previous  rules  with  reference  to 
actions  by  executors  or  administrators,  and  trustees  of  express 
trusts,  are  expressty  enacted,  and  they  may  now  sue  as  before 
in  all  cases,  without  joining  their  cestui  que  trust  in  the  action. 
An  administrator,  it  would  seem,  may  sue  on  a  promissory  note 
given  for  part  of  his  intestate's  estate,  either  personally,  or  in  his 
representative  capacity,  at  his  election.  Bright  v.  Carrie,  5  Sandf. 
433  ;  10  L.  O.  104 ;  Merritt  v.  Seaman,  2  Seld.  168. 

Trustees.'] — By  the  recent  amendments,  the  utmost  extent  of 
signification  is  attributed  to  the  term  "  trustee  of  an  express 
trust;"  and  all  parties  with  whom,  or  in  whose  name,  a  contract 
is  made  for  the  benefit  of  another,  are  expressly  declared  to  be 
included  within  it.  This  amendment  is  in  accordance  with  the 
views  previously  laid  down  in  Grirmellv.  Schmidt,  2  Sandf.  706; 


,04  PARTIES  TO  AN  ACTION. 

3  C.  E.  19 ;  8  L.  0.  197,  on  the  subject  of  mercantile  factors,  or 
agents,  doing  business  for  others,  but  in  their  own  names:  and 
also  in  Ward  v.  Whitney,  3  Sandf.  399,  with  reference  to  the 
managing  owner  of  a  vessel,  where  another  party  held  a  mere 
executory  contract  for  the  purchase  of  an  interest  therein.  In 
Hahicht  v.  Pernberton,  4  Sandf.  657,  the  same  principle  was  ex- 
tended to  the  case  of  the  general  agent  of  an  incorporated  asso- 
ciation; in  Person  v.  Warren,  14  Barb.  488,  to  the  committee 
of  a  lunatic,  siring  to  set  aside  the  lunatic's  improvident  deed; 
in  Hoogland  v.  Hudson,  8  How.  343,  to  the  case  of  an  overseer 
suing  under  a  filiation  bond ;  and  in  Burbank  v.  Beach,  15  Barb. 
326,  to  the  nominal  proprietor  of  an  individual  bank.  The 
administrator  of  a  person  killed  by  a  steamboat  accident,  was 
also  held  to  be  the  proper  party  to  bring  an  action  under  the 
statute  of  1847,  on  behalf  of  his  widow  and  next  of  kin.  Safford 
v.  Drew,  12  L.  0.  150. 

The  law  on  the  subject  of  suits  brought  by  the  committees  of 
lunatics,  &c,  in  their  own  names,  has  been  before  referred  to. 
Eeceivers,  under  sections  244  and  299  of  the  Code,  and  Eule  81 
of  the  Supreme  Court,  and  sheriffs,  under  sec.  232,  also  possess 
authority  to  sue  in  their  own  names ;  though  they  may  likewise 
sue  in  the  names  of  the  parties  for  whom  they  act,-or  may  dele- 
gate the  right  to  sue  to  such  parties,  and  may  therefore  be  con- 
sidered as  coming  within  the  spirit  of  sec.  113. 

It  by  no  means  follows,  however,  that,  because  parties  an- 
swering the  general  description  of  trustees  of  an  express  trust, 
under  the  extended  signification  given  to  the  term  by  the  recent 
amendments,  may  sue  in  their  own  names,  the  real  parties  in 
interest  may  not  also  sue  in  many  of  such  cases;  and,  in  the 
event  of  any  conflict  between  two  suits  of  this  nature  occurring, 
proceedings  instituted  by  the  latter  might,  in  all  probability, 
obtain  the  preference.  The  instance  of  a  party  for  whose  benefit 
a  contract  bas  been  made,  may  be  mentioned  as  a  type  of  num- 
berli  of  this  description  that  might  arise  in  practice. 

The  above-cited  cases  of  The  Camden  Ban/c  v.  Bodgers,  and  Lane 
v.  The  Columbus  Insurance  Companyt&ie  in  fact  express  authority 
to  thi 

I;    the  reeenl  i  tatu  te,  c.  224  of  Laws  of  1854,  p.  502,  trustees 

under  :ni  ae  ignment  by  an   insolvent  corporation,  whose  trust 

!  from  any  cause  have  become  vested  in  the  Supreme  Court, 

are  invested  will:  all  the  power,  and  made  subject  to  the  obli- 


PARTIES  TO  AN  ACTION.  55 

gations  and  duties  imposed  by  art.  III.,  title  IV.,  part  III.,  c.  VIII. 
of  the  Kevised  Statutes  upon  Receivers  appointed  on  the  volun- 
tary dissolution  of  such  a  corporation,  and  likewise  with  those 
conferred  or  imposed  by  the  act  of  19th  March,  1852,  to  facilitate 
the  collection  of  debts  against  corporations,  subject  in  all  respects 
to  the  control  and  direction  of  the  court. 

Husband  and  Wife.~\ — The  next  point  that  arises  for  consider- 
ation is  with  respect  to  the  interests  of  married  women ;  the 
provisions  of  the  Code  on  which  subject  are  as  follows : 

§  114.  When  a  married  woman  is  a  party,  her  husband  must  be 
joined  with  her,  except  that, 

1.  When  the  action  concerns  her  separate  property,  she  may  sue  alone. 

2.  When  the  action  is  between  herself  and  her  husband,  she  may 
sue  or  be  sued  alone. 

But,  where  her  husband  cannot  be  joined  with  her,  as  herein  pro- 
vided, she  shall  prosecute  or  defend  by  her  next  friend. 

The  above  clause  is  evidently  imperative  as  to  the  joinder  of 
the  husband  as  co-plaintiff  with  the  wife,  in  whatever  character 
she  may  sue,  except  under  the  circumstances  specially  pro- 
vided for.  As  regards  her  separate  property,  it  is  clear  that  she 
may  sue  alone,  Willis  v.  Underliill,  6  How.  396;  though  it  would 
seem  she  is  not  absolutely  bound  to  do  so.     See  infra. 

The  last  clause  in  this  section  was  inserted  as  an  amendment 
in  1851,  in  consequence  of  a  conflict  in  the  previous  decisions 
on  the  subject.  The  conclusion  that  a  married  woman  could 
sue  or  be  sued  in  her  own  name,  under  the  Code  as  it  stood 
before,  was  come  to  in  Tippd  v.  Tippel,  4  How.  846,  3  C.  R.  40; 
Newman  v.  Newman,  3  C.  R.  183;  Anon.,  3  C.  R.  18;  Shore  v. 
Shore,  2  Sandf.  715 ;  8  L.  0. 166,  (the  same  case  as  the  last,)  and 
was  acted  upon  without  question  in  White  v.  White,  4  How.  102  : 
the  contrary  proposition  was  maintained  in  Colt  v.  Coit,  4  How. 
232;  2  C.  R.  94,  affirmed  6  How.  53;  Forrest  v.  Forrest,  Z  C.  R. 
254;  and  Cook  v.  Rawdon,  6  How.  233,  1  C.  R.  (N.  S.)  382.  The 
question  is  now  set  at  rest  by  the  amendment  in  question  ;  and 
the  provision  has  since  been  acted  upon  in  Heller  v.  Heller,  6  How. 
194, 1  C.  R.  (N.  S.)  309 ;  Meldora  v.  Meldora,  4  Sanclf.  721 ;  Hender- 
son v.  Easton,  8  How.  201 ;  and  Towner  v.  Towner,  7  How.  387. 
Her  previous  consent  is  of  course  necessary,  before  a  suit  can  pro- 
perly be  commenced  in  her  name  by  a  party  acting  as  next  friend, 
5 


QQ  PARTIES  TO  AN  ACTION. 

No  formal  order  appointing  such,  party  is  however  necessary- 
Towner  v.  Towner,  above  cited. 

Where  the  husband  and  wife  possess  different  interests  in  the 
same  subject-matter,  they  may  properly  be  joined  as  plaintiffs. 
Gonde  v.  Shephard,  4  How.  75  ;  Conde  v.  Nelson,  2  C.  K.  58 ;  In- 
graham  v.  Baldwin,  12  Barb.  9,  affirmed  by  the  Court  of  Ap- 
peals, 7th  Oct.,  1853. 

In  Van  Bur  en  v.  Cockburn,  2  C.  R.  63,  it  was  held  that  the 
joinder  of  the  husband  as  co-plaintiff  with  the  wife,  in  a  suit 
relating  to  her  separate  estate,  was  no  ground  of  demurrer.  The 
contrary  is  however  maintained,  and  Van  Buren  v.  Cockburn 
expressly  dissented  from,  in  Brownson  v.  Gifford,  8  How.  389, 
where  such  a  demurrer  was  allowed.  See  also  Bailey  v.  Easterly, 
7  How.  495,  as  to  their  joinder  as  defendants.  The  point  seems 
however  very  doubtful ;  where  any  interest  whatever,  either 
present  or  inchoate,  is  vested  in  the  husband,  it  would  seem  that 
this  strict  view  cannot  prevail.  See  Ingraham  v.  Baldwin,  12 
Barb.  9.  See  likewise  Ilowland  v.  Fort  Edward  Paper  Mill 
Company,  8  How.  505 ;  and  in  all  cases  of  this  description  it  will 
be-  clearly  proper,  and  in  most  cases  necessary  to  make  him  a 
defendant,  even  if  he  be  not  joined  as  plaintiff.  In  a  partition 
suit  by  the  husband,  the  wife  must  be  joined  as  co-plaintiff  in 
respect  of  her  inchoate  right  of  dower.  Ripple  v.  Gilborn,  8 
How.  456. 

The  husband's  interests,  in  cases  arising  before  the  recent  act 
for  the  protection  of  married  women,  are  recognized  in  Jones  v. 
Patterson,  1 1  Barb.  572,  where  it  was  held  that  he  might  sue  for 
occupation  of  his  deceased  wife's  estate  during  the  coverture.  In 
Moore  v.  The  City  of  New  York,  4  Sandf.  456,  affirmed  by  the 
Courts  of  Appeals,  12th  April,  1853,  the  wife's  dower  was  refused 
to  be  allowed  as  a  charge  upon  lands  taken  under  an  act  of  the 
Legislature  during  the  husband's  lifetime.  Goods  purchased  by 
the  wife  were  allowed  to  be  taken  on  execution  for  the  debt  of 
the  husband,  notwithstanding  the  statute,  in  Lovett  v.  Robin- 
son, 7  Now.  L05.  In  Perkins  v.  Coffrell,  L5  Barb.  446,  property 
originally  belonging  to  and  Lately  reassigned  to  the  wife,  but 
wliidi  had  intermediately  passed  through  the  husband  to  his 
assignees,  was  held  liable  to  be  sold  on  execution  for  his  debts 
prior  t'»  the  rea  signment. 

Tin-  rights  of  the  wife,  on  the  contrary,  as  regards  the  disposal 
of  her  separate  property  by  will,  are  fully  maintained  in   The 


PARTIES  TO  AN  ACTION.  QJ 

American  Home  Missionary  Society  v.  Wadhams,  10  Barb.  597. 
See  also  as  to  her  rights  under  an  ante-nuptial  contract  before 
the  statute,  Van  Allen  v.  Humphrey,  15  Barb.  555,  and  Sheldon 
v.  Pelton,  Court  of  Appeals,  12th  April,  1853 ;  in  which  last  case 
it  is  held  that  such  a  contract,  when  not  fully  performed,  is  no 
bar  to  a  widow's  claim  to  the  property  to  which  she  is  entitled 
by  statute.  She  may  transfer  a  note  belonging  to  her  as  part  of 
her  separate  property,  pending  an  action  for  its  value,  and  the 
transferee  may  be  substituted  in  her  stead  by  order,  whereon 
her  husband  will  become  a  competent  witness.  Hastings  v. 
McKinley,  Court  of  Appeals,  7th  Oct.,  1853.  In  Gates  v.  Brower, 
Court  of  Appeals,  31st  Dec,  1853,  her  right  to  make  a  purchase 
on  her  own  separate  account,  of  farming  stock,  to  be  used  on  a 
farm  occupied  by  herself  and  her  husband,  seems  to  be  recog- 
nized, even  though  it  did  not  appear  that  she  had  any  separate 
estate.  A  new  trial  was  however  granted,  on  the  ground  that 
the  question  of  her  agency  for  the  husband  ought  to  have  been 
submitted  to  the  jury. 

The  general  rights  of  a  wife  under  the  recent  statute,  as  be- 
tween herself  and  her  husband,  are  defined  in  Van  Sickle  v.  Van 
Sickle,  8  How.  265.  Their  joint  deed,  not  acknowledged  by 
her,  will  only  avail  to  pass  the  husband's  interest :  on  his  death 
she  will  be  restored  to  all  her  rights  in  the  premises;  nor  will 
even  the  fact  that  the  consideration  for  that  deed  was  actually 
paid  to  her,  estop  her  claim  to  the  land.  Curtiss  v.  Follett,  15 
Barb.  337.  Nor  can  she  be  made  liable  for  her  own  contract 
made  jointly  with  her  husband.  Marquat  v.  Marquat,  7  How. 
417;  Bailey  v.  Easterly,  7  How.  495. 

Her  dower  right  cannot  be  conveyed  by  her  to  her  husband, 
Graham  v.  Van  Wyck,  14  Barb.  531 ;  7  How.  373.  Nor  can  her 
paramount  right  to  dower  be  evaded,  in  a  suit  by  a  mortgagee, 
even  though  she  be  made  a  party  to  that  suit  in  another  capa- 
city. Denton  v.  Nanney,  8  Barb.  618;  Lewis  v.  Smith,  11  Barb. 
152  ;  affirmed  by  Court  of  Appeals,  18th  April,  1854.  Her 
claim  in  this  respect  will  always  be  favored,  nor  will  she  be  de- 
prived of  it  by  a  testamentary  disposition  for  her  benefit,  unless 
the  testator's  intent  to  do  so  appear  expressly  or  by  necessary 
implication.  Lasher  v.  Lasher,  13  Barb.  106.  See  as  to  the 
enforcement  of  her  rights  in  respect  of  her  dower,  Ellicott  v. 
Mosier,  11  Barb.  574.  Nor,  it  seems,  can  a  set-off  be  pleaded  in  an 
action  by  her  for  that  purpose.  Bogardus  v.  Parker,  7  How.  303. 


63  PARTIES  TO  AN  ACTION. 

Where,  however,  in  knowledge  of  her  rights,  the  widow  of 
a  testator  had  affirmed  a  contract  for  sale  of  specific  personal 
property,  made  by  his  executor,  and  agreed  to  accept  that  con- 
tract in  lieu  of  her  claim,  she  was  held  to  be  bound  by  its  terms, 
and  to  be  liable  to  rebate  to  the  purchaser  for  a  deficiency  in  its 
subject-matter.  Carter  v.  Hamilton,  Court  of  Appeals,  18th 
April,  1854. 

In  a  gross  case  of  fraud  by  a  married  woman,  a  judgment 
obtained  against  her  in  error,  as  a  feme  sole,  was  refused  to  be 
set  aside  on  motion,  and  she  was  left  to  her  appeal.  Jenei  v. 
Dusenbury,  11  L.  0.  355.  In  12  L.  0.  31,  will  be  found  a  long 
communication  on  the  subject  of  the  rights  and  powers  of  mar- 
ried women,  in  which  the  subject  is  fully  gone  into  and  various 
authorities  cited. 

The  principle  of  the  wife's  separate  interest  was,  it  may  be 
remarked,  fully  recognized  in  Pillow  v.  Bushnell,  4  How.  9 ;  2 
C.  R.  19;  an  action  brought  by  husband  and  wife  for  an  assault 
on  the  latter,  where  evidence  of  the  assault  being  committed 
with  her  consent,  was  held  to  be  admissible ;  and  that  such 
consent,  if  proved,  constituted  an  entire  defence.  See  also 
Erwin  v.  Smaller,  2  Sandf.  310 ;  Hasbrouck  v.  Vandervoort,  9  L. 
0.  249 ;  4  Sandf.  596;  1  C.  E.  (JST.  S.)  81 ;  affirmed  by  Court  of 
Appeals,  31st  Dec,  1853. 

It  may  not  be  superfluous  either  to  remark  at  this  point,  that, 
in  White  v.  White,  4  How.  102,  before  cited,  sec.  2  of  the  act,  c. 
200,  of  the  laws  of  1848,  which  gives  the  wife  a  separate  interest 
in  all  property  whatever,  accruing  to  her  during  the  coverture, 
was  held  to  be  unconstitutional,  as  far  as  regarded  its  retrospect- 
ive effect  in  relation  to  marriages  existing  at  the  time  of  the 
passage  of  that  act;  but  not  so  as  regards  its  prospective  ope- 
ration. 

Although,  as  a  general  rule,  the  appointment  of  a  guardian  is 
a  accessary  preliminary  to  the  commencement  of  a  suit  where 
:ui  infant  is  party,  see  Hill  v.  Thacter,  3  How.  407;  C.  E.  3, 
it  seems  that  where  the  suit  is  by  husband  and  wife,  in  respect 
of  their  joint  property,  the  wife  being  an  infant,  the  appointment 
of  ;i  guardian  for  the  wife  will  not  be  necessary.  The  husband 
appoints  an  attorney  for  both.  Cook  v.  Bawdon,  6  How.  233, 
!  ( !,  I>\  (\ .  S)  S82.    See  alsi »  Hubert  v.  Newell,  4  How.  93. 

Infiiiir-.]  —Aw  infant  can  only  sue  by  his  guardian,  as  above. 


PARTIES  TO  AN  ACTION.  (39 

It  seems,  however,  that,  when  a  suit  is  once  brought  by  him,  he 
is  as  much  bound  and  as  little  privileged  as  a  plaintiff  of  full 
age.  A  decree  for  sale  of  an  estate,  in  which  infant  plaintiffs 
were  interested,  on  the  prayer  of  a  mortgagee  defendant,  was  ac- 
cordingly sustained  in  Darvin  v.  Hatfield,  4  Sandf.  468. 

Joinder  of  Parties  interested.'] — By  sec.  117,  it  is  enacted  that 
all  persons  having  an  interest  in  the  subject  of  the  action,  and 
in  obtaining  the  relief  demanded,  may  be  properly  joined  as 
plaintiffs,  except  as  otherwise  provided.  In  Peck  v.  Elder,  3  Sandf. 
126,  it  was  held,  in  accordance  with  this  principle,  that  owners 
of  different  tenements  affected  by  the  same  nuisance,  might  join 
as  co-plaintiffs  in  a  suit  to  restrain  its  continuance.  In  Conro  v. 
Port  Henry  Iron  Company,  12  Barb.  27,  it  was  similarly  laid 
down,  that  several  creditors  of  the  same  debtor  might  unite  in 
a  general  creditors'  bill,  although  it  was  competent  for  one  only 
to  maintain  such  a  suit.  Of  course,  the  provision  in  question 
must  be  understood  with  this  qualification,  that  the  persons  so  to 
be  joined  have  all  the  same  interest  in  the  subject-matter  of  the 
action,  and  in  the  relief  to  be  obtained  in  it.  If  their  rights  in 
relation  thereto  are  in  any  manner  diverse  or  opposed  to  each 
other,  they  cannot  be  properly  joined  as  co-plaintiffs,  notwith- 
standing they  may  all  possess,  to  a  certain  extent,  a  common 
title  to  relief  against  some  other  party.  They  must,  under 
such  circumstances,  be  classified  ;  and  one  or  other  of  the  classes 
must  appear  in  the  character  of  defendants,  the  remaining  one 
undertaking  the  conduct  of  the  suit.  It  will  be  seen  that,  by 
sec.  119,  the  joinder,  as  plaintiffs,  of  all  parties  in  the  same 
interest  is  made  positively  imperative,  unless  in  the  event  of 
their  refusal,  when,  but  not  otherwise,  they  may  be  made  de- 
fendants. 

Actions  on  behalf  of  State. ~\ — The  provisions  of  sec.  447,  in  re- 
ference to  actions  brought  by  the  proper  officer,  on  forfeiture  of 
property  to  the  people  of  the  State,  will  of  course  be  remarked. 

Action  by  One  of  a  Class.'] — The  old  practice  of  one  or  more  of 
a  numerous  class  suinsr  for  the  benefit  of  the  whole,  as  in  the 
former  creditor's  suit,  and  other  similar  proceedings,  is,  as  will 
be  seen,  expressly  provided  for  by  the  latter  part  of  sec.  119. 
A  party,  member  of  a  class  of  persons  interested  in  a  particular 


70  PARTIES  TO  AN  ACTION. 

branch  of  labor,  may  maintain  a  suit  in  his  own  name,  without 
making  the  others  parties,  provided  he  brings  it  on  behalf  of 
himself,  and  all  others,  members  of  that  class.  He  cannot,  how- 
ever, bring  a  separate  action  in  his  own  name  only,  unless  he 
has  an  interest  in  the  subject,  peculiar  to  himself,  and  not  en- 
joyed in  common  with  others.  Smith  v.  Lockivood,  13  Barb.  209  ; 
10  L.  0.  32 ;  1  C.  R.  (N.  S.)  319.  Nor  can  any  one  maintain  an 
action  for  an  injury  to  others,  whether  they  be  individuals  or  the 
public,  unless  his  own  rights  are  invaded.  Badeau  v.  Mead,  14 
Barb.  328.  The  practice  in  suits  of  this  description  will  be  found 
laid  down  in  extenso,  and  various  authorities  cited,  in  Conro  v. 
Port  Henry  Iron  Company,  12  Barb.  27.  In  McKenzie  v.DAmou- 
reux,  11  Barb.  516,  an  action,  brought  by  some  of  the  legatees 
under  a  will,  against  the  personal  representatives  and  devisees 
of  the  testator,  was  sustained ;  and  it  was  laid  down,  firstly,  that 
where  the  question  is  one  of  common  and  general  interest,  such 
an  action  may  be  brought,  without  showing  affirmatively  the  im- 
possibility of  bringing  in  the  other  parties ;  and,  secondly,  that 
this  provision  of  the  Code  applies  indiscriminately  to  all  actions, 
whether  they  involve  questions  of  common  interest  or  not.  In 
relation  to  the  shareholders  in  a  foreign  incorporated  associa- 
tion, but  not  incorporated  under  the  laws  of  this  State,  see 
Habicht  v.  Pemberton,  4  Sandf.  657,  laying  down  that,  in  such 
cases,  the  general  agent  of  the  society  is  competent  to  sue  on 
their  behalf  under  sec.  113,  and  allowing  a  demurrer  to  an 
action  brought  by  a  shareholder  on  behalf  of  himself  and  the 
other  parties  entitled.  In  Davis  v.  Garr,  2  Seld.  124,  where  a  note 
had  been  given  to  the  trustees  of  a  similar  association  and  their 
successors  in  office,  it  was  held  that  the  individuals  named  in 
that  note  might  maintain  an  action  in  their  own  names,  though 
others  had  succeeded  them  as  trustees. 

In  Bouton  v.  The  City  of  Brooklyn,  however,  15  Barb.  375;  7 
IIow.  198,  an  action  brought  by  a  party  complaining  of  a  munici- 
pal assessment,  on  behalf  of  himself  and  other  landholders,  simi- 
larly interested,  was  held  not  to  be  maintainable,  on  the  ground 
that  tin'  parties  had  no  common  rights  in  the  subject-matter  in 
question,  which  would  authorize  them  to  use  that  form  of 
remedy. 

Recusant  Parties  made  Defendants.'] — Where  any  party  who 
ought  otherwise  to  have  been  joined  as  a  plaintiff'  will  not  con- 


PARTIES  TO  AN  ACTION.  71 

sent,  he  may  be  made  a  defendant,  according  to  the  old  Chan- 
cery practice  upon  the  subject.     Sec.  119. 

§  30.  Parties  Defendants,  General  Rules. 

We  now  come,  in  the  second  place,  as  to  who  are  or  are  not 
necessary  or  proper  parties  to  be  made  defendants  in  an  action 
when  brought ;  and  many  of  the  general  observations  before 
made  in  reference  to  parties  plaintiffs,  are  applicable  to  this 
branch  of  the  question  also. 

According  to  the  plan  above  adopted  with  reference  to  parties 
plaintiffs,  it  will  be  sufficient  shortly  to  notice  some  few  of  the 
cases  in  which  the  practice  still  stands  as  it  did  before  the  Code, 
referring  the  reader  to  the  works  there  alluded  to,  for  more  de- 
tailed information,  but  entering  in  detail  into  the  special  provi- 
sions of  the  Code  on  the  subject,  and  the  decided  cases  thereon. 

The  old  doctrine  still  prevails  then  on  the  following  points : — 

Joint  and  Several  Contractors. ,] — Where  parties  are  sued  upon  a 
joint  contract,  or  are  joint  tenants  of  real  estate,  all,  or  the  sur- 
vivors of  them,  must  be  made  defendants.  Thus  in  Bridge  v. 
Pay  son,  5  Sandf.  210,  the  nonjoinder  of  the  copartner  of  a  per- 
son liable  only  as  a  partner,  but  sued  alone,  was  held  to  be  a 
valid  defence. 

Where  they  are  sued  on  a  joint  and  several  contract,  the  plain- 
tiff may  include  all,  and  also  the  representatives  of  any  deceased , 
in  one  action ;  or  may  proceed  against  them  separately,  at  his 
election.     See  however  sec.  304,  as  to  costs  in  the  latter  case. 

Aliens^ — An  alien,  or  a  citizen  of  another  State,  may  be  sued 
in  the  State  courts ;  but  see  previous  observations  as  to  the  fede- 
ral jurisdiction,  when  invoked  under  these  circumstances.  As 
long,  however,  as  the  former  sustains  the  character  of  an  alien 
enemy,  the  statute  does  not  run  ;  sec.  103. 

Corporations .] — Corporations,  domestic  or  foreign,  are  sued,  as 
before  noticed,  under  their  corporate  names;  and  joint-stock 
companies  may  be  sued  in  the  name  of  their  president  or  trea- 
surer.    See  c.  258,  Laws  of  1849. 

Individual  corporators  cannot  be  properly  joined  in  a  suit 
against  a  corporation,  see  Pack  v.  The  Mayor  of  New  York,  3 


72  PARTIES  TO  AN  ACTION. 

Comst.  489,  unless  they  have  some  individual  interest  which 
may  render  them  proper  parties. 

See  however  Habicht  v.  Pemberton,  and  Davis  v.  Gear,  before 
cited,  in  relation  to  foreign  associations,  the  incorporation  of 
which  is  not  proved,  or  recognized  by  the  laws  of  this  State. 

In  Pack  v.  The  Mayor  of  New  York,  Court  of  Appeals,  12th 
April,  1853,  and  likewise  in  Grub  v.  The  Mayor  of  New  York, 
Court  of  Appeals,  18th  April,  1854,  the  Corporation  of  that  city 
were  held  not  to  be  liable  for  damages  accrued  to  an  individual, 
by  the  negligence  of  their  sub-contractors  in  executing  a  public 
work. 

Shareholders,  <£c] — Shareholders  and  stockholders  in  dissolved 
companies  for  manufacturing  purposes,  may  be  sued,  to  the 
amount  of  their  shares,  by  creditors  of  those  companies,  under 
the  provisions  of  the  act  of  22d  March,  1811.  See3K.S.262,  Third 
Edition;  see  also  Laws  of  1848,  c.  40;  3  K.  S.,  Third  Edition, 
613 ;  Laws  of  1853,  c.  333,  p.  705.  By  the  latter  act,  the  holders  of 
stock,  issued  in  payment  for  property  purchased,  to  the  amount 
of  the  value  of  that  property,  and  so  reported,  are  exempted 
from  all  farther  liability. 

liepresentatives  of  Deceased  Debtor.] — As  long  as  the  personalty 
of  a  deceased  debtor  remains  unexhausted,  his  executor  or  ad- 
ministrator is  the  proper  party  to  be  sued,  before  distribution ; 
but,  afterwards,  the  assets  may  be  pursued  in  the  hands  of  next 
of  kin,  or  legatees. 

But,  after  the  exhaustion  of  such  personal  estate,  the  real 
estate  may  be  resorted  to,  first  in  the  hands  of  the  executor,  and 
afterwards  in  those  of  the  heir,  and,  failing,  in  those  of  the  devi- 
see of  such  real  estate. 

In  Stewart  v.  Kissam,  11  Barb.  271,  the  priorities  of  the  parties 
sued  in  the  above  capacities  are  distinctly  laid  down,  and  it  was 
held,  1st,  That  before  a  creditor  can  sue  legatees,  he  must  show 

that  no  assets  havel a  delivered  to  or  remain  with  the  next 

of  ':in.  2d,  That  before  the  heirs  can  be  sued,  the  insufficiency 
of  the  ]"■!'  >nal  estate  In  the  hands  of  the  executors,  next  of  kin, 
nnd  legatees  must  be  shown,  and  that  a  suit  at  law  against  those 
parties  is  a  nee©  ary  preliminary  to  the  right  to  sue  the 
heir.-;  and, 8d,  That  before  devisees  can  be  resorted  to,  the 
insufficiency  and  the  exhaustion  of  all  remedies  against  the  prior 


PARTIES  TO  AN  ACTION.  73 

parties,  must  in  like  manner  be  shown.  It  was  also  held  that  it 
makes  no  difference  that  the  same  persons  are  entitled  to  the 
whole  estate,  real  and  personal,  the  statute  requiring  the  creditor 
in  all  cases  to  seek  satisfaction  from  the  latter,  before  he  resorts 
to  the  former  in  the  hands  of  the  heirs. 

In  the  same  case  it  was  held  that  the  heirs,  under  such  cir- 
cumstances, must  all  be  sued  jointly,  whether  in  law  or  in  equity, 
and  also  that  the  heirs  and  personal  representatives  cannot  be 
joined  in  the  same  suit.  This  last  conclusion  seems  however  to 
be  no  longer  law,  owing  to  the  subsequent  amendments  in  s.  167. 
In  Kellogg  v.  Olmsted,  6  How.  487,  it  was  in  like  manner  held 
that,  under  the  statute  of  1837,  Laws  of  1837,  p.  537,  s.  73,  the 
heirs  of  an  intestate  must  be  sued  jointly,  and  cannot  be  so  se- 
parately, for  a  debt  against  the  intestate ;  but  that  such  liability 
does  not  make  them  liable  as  joint  debtors,  within  the  purview 
of  the  statutory  provisions  in  relation  to  the  taking  of  judgment 
against  parties  standing  in  that  capacity,  and  not  served  with 
process.  In  Roe  v.  Swezey,  10  Barb.  247,  the  same  conclusions 
as  were  come  to  in  Stewart  v.  Kissam  with  respect  to  the  pre- 
requisites to  a  suit  against  heirs  under  these  circumstances,  are 
maintained,  and  it  was  held  that  such  a  suit  could  not  be  brought, 
within  the  three  years'  limitation  prescribed  by  the  statute,  under 
any  circumstances. 

Executors,  <bc,  as  such.] — Executors,  administrators,  or  trus- 
tees of  an  express  trust,  may  be  sued,  as  such,  without  joining 
their  cestui  que  trusts,  unless  the  latter  possess  some  separate  in- 
dividual interest.  See,  as  to  residuary  legatees,  Shelton.v.  Pel- 
ton,  Court  of  Appeals,  12th  April,  1853,  holding  that  residuary 
legatees  are  not  necessary  or  proper  parties  to  a  proceeding  be- 
tween the  representatives  and  the  widow  of  a  testator,  in  respect 
to  claims  of  the  latter. 

An  executor  may  sue  his  co-executor  for  a  debt  due  to  the 
testator's  estate.     Wurts  v.  Jenkins,  11  Barb.  546. 

Partners^ — In  a  suit  against  a  partnership,  the  acting  partners 
are  all  necessary  parties.  The  reverse  is  however  the  case  as 
regards  limited  or  dormant  partners,  under  the  provisions  of 
part  II.  K.  S.,  chap.  IV.,  title  I. ;  IE.  S.  763  to  768. 

Lunatics,  <£c] — An  action  must  be  brought  against  a  lunatic, 
idiot,  or  habitual  drunkard,  in  his  own  name,  the  process  being 


74  PARTIES  TO  AN  ACTION. 

served  as  specially  provided  by  sec.  134.  The  leave  of  the 
court  must,  however,  be  previously  obtained  on  petition,  in  all 
cases  where  the  party  has  been  judicially  declared  to  be  such, 
according  to  the  old  practice.  Soverhill  v.  Dickson,  5  How.  109 ; 
Hall  v.  Taylor,  8  How.  428.  The  inquisition  in  such  a  case  is 
conclusive  evidence  of  incapacity,  and  evidence  to  rebut  it  can- 
not be  given.  Wadsworth  v.  Sherman,  14  Barb.  169;  affirmed 
by  Court  of  Appeals,  31st  July,  1853.  A  purchase  of  real  estate 
from  a  party,  pending  the  proceedings  under  a  commission 
issued  against  him  as  an  habitual  drunkard,  was  set  aside  in 
Griswold  v.  Miller,  15  Barb.  520. 

Tenants  in  Common  I] — If  tenants  in  common  are  sued  in  res. 
pect  of  matter  affecting  their  joint  estate,  all  must  be  joined;  if 
on  matter  relating  to  their  several  shares  alone,  several  actions 
may  be  brought. 

Ambassadors,  Consuls,  &c.~] — Foreign  ambassadors  and  their 
servants  possess  an  absolute  privilege  of  exemption  from  suit  in 
the  State  courts;  and  this  privilege  extends  to  ambassadors  from 
one  foreign  sovereign  state  to  another ;  Holbrook  v.  Henderson, 

4  Sandf.  619. 

A  consul,  or  vice-consul,  possesses  a  similar  privilege,  though, 
so  long  as  he  does  not  assert  it,  the  courts  are  not  absolutely 
disqualified  from  entertaining  the  action.  It  is,  however,  com- 
petent for  him  to  assert  that  privilege  at  any  juncture  dur- 
ing the  proceedings,  however  late  it  may  be.  In  cases  of  any 
importance,  the  most  prudent  course  will  therefore  be,  to  com- 
mence a  suit  against  a  party  holding  this  situation,  in  the  federal 
courts,  ab  initio.  The  leading  case  on  the  subject  of  this  privi- 
lege, is  that  of  Davis  v.  Packard,  7  Peters,  276,  (a  decision  of  the 
Supreme  Court  of  the  United  States,)  which  case,  if  examined, 
appears  to  establish  beyond  question  the  doctrine  that  such 
privilege  cannot  be  waived,  but  may  be  asserted  at  any  time, 
notwithstanding  the  ruling  to  the  contrary  in  Flynn  v.  Stoughton, 

5  Barb.  I  L5.  In  Thompson"?.  Valarino,  3  C.  K.  143,  the  doctrine 
of  Davis  v.  Packard  is  maintained,  and  extended  to  cases  where 

>nsu]  is  indebted  jointly  with  a  non-privileged  party.    This 

cas':  b  I"  en  affirmed  by  the  Court  of  Appeals ;   Valarino 

v.  Thompson^  L2th  April,  L863;  and  by  it  the  doctrine  above 

stated  \b  clearly  e  tablished  to  its  full  extent. 

In  Be  AffcinenOi  I  Sandf.  ''''•,,»:  and  Griffin  v.  Dominguez,  11 


PARTIES  TO  AN  ACTION.  75 

L.  O.  285;  the  same  principle  is  maintained,  as  regards  an  at- 
tachment in  the  former,  and  proceedings  supplementary  to  exe- 
cution in  the  latter  case. 

A  foreign  state  or  potentate  cannot,  it  would  seem,  be  sued, 
unless  in  the  federal  tribunals. 

Members  of  Legislature.']  —  A  member  of  the  Legislature  is 
privileged  from  arrest,  but  no  farther ;  and  therefore  a  suit  may 
be  commenced  or  prosecuted  against  him  as  usual,  in  all  other 
respects,  except  as  regards  remedies  against  the  person. 

Defendants  in  Tort.] — Actions  \  /:  respect  of  wrong,  jointly 
committed  by  several  parties,  may  be  brought  against  all,  or 
against  any  of  those  parties  ind'rvidually.  Where  the  same 
wrong  is  committed  by  more  than  o-ne  party  severally,  as  on 
slander  for  the  same  words  spoke/..,  separate  actions  must  be 
brought.  Infants  may  be  sued  for  personal  torts,  and  corporate 
bodies  for  damages  arising  from  the  neglect  of  their  servants. 

"Where  a  married  woman  is  sued  for  tort,  committed  before 
or  during  coverture,  her  husband  must  be  joined. 

The  death  of  the  wrong-doer  in  actions  for  personal  tort,  ex- 
tinguishes the  remedy.  In  these,  "  actio  personalis  moritur  cum 
persona."  Where,  however,  the  action  really  arises  out  of  con- 
:  tract,  though  formally  brought  in  respect  of  a  wrong,  the  ordi- 
nary rules  as  to  parties  apply. 

Principal  and  Agent.] — The  principal,  not  the  agent,  is  the 
proper  defendant  in  all  cases,  unless,  as  before  remarked,  the 
agent  be  personally  interested. 

Associations  owning  Vessels.] — In  chap.  385  of  the  laws  of  1836, 
special  provision  is  made  with  reference  to  the  parties  to  be 
made  defendants  in  actions  against  associations  owning  vessels, 
&c,  and  a  plaintiff  is  not  bound  to  make  persons  parties,  who 
have  not  acquired  and  duly  registered  their  interest  as  thereby 
provided,  at  least  thirty  days  before  suit  brought. 

Partition.] — In  partition,  every  person  directly  or  indirectly 
interested  in  the  corpus  of  the  estate  itself  must  be  a  party,  in- 
cluding the  wives  of  parties  living,  in  respect  of  their  inchoate 
right  to  dower.  Incumbrancers  are  not  necessary  parties,  though 
it  may  sometimes  be  expedient  to  make  them  so,  in  order  to 
bind  them  by  the  decree.    Bogardus  v.  Parker,  7  How.  305.     If 


76  PARTIES  TO  AN  ACTION. 

done,  however,  this  will  be  at  the  risk  of  costs,  see  Hammersley 
v.  Hammersley,  7  L.  0.  127,  unless  it  be  done,  as  there,  at  the 
request  of  the  other  parties. 

The  including  superfluous  parties  will  not,  under  ordinary  cir- 
cumstances, constitute  a  demurrable  objection.  Broumson  v.  Gif 
ford,  8  How.  389. 

Foreclosure^] — In  foreclosure,  every  person  interested  in  the 
corpus  of  the  estate,  and  every  junior  incumbrancer,  whether  on 
mortgage,  or  as  a  creditor  on  a  judgment  docketed  in  the  same 
county,  must  be  made  a  party.  Senior  incumbrances  may  be 
omitted,  unless  it  is  sought  to  pay  off  their  mortgages  out  of  the 
sale-moneys,  in  which  case  they  must  be  joined.  And,  although 
they  be  joined,  their  paramount  rights  prior  to  the  incumbrance 
sought  to  be  enforced,  will  not  be  affected,  Lewis  v.  Smith,  11 
Barb.  151,  affirmed  by  Court  of  Appeals,  18th  April,  1854. 
The  dower  right  of  the  wife  or  widow  of  the  owner  is  a  para- 
mount right  of  this  description,  and  will  render  her,  as  such,  a 
necessary  party.     See  also  Denton  v.  Nanny,  8  Barb.  618. 

The  rights  of  a  party  claiming  adversely,  and  prior  to  the 
mortgage,  cannot  properly  be  litigated  in  an  ordinary  suit  for 
foreclosure;  and,  if  he  object,  the  suit  should  be  dismissed 
against  him.  Corning  v,  /Smith,  2  Seld.  82.  In  an  action  for 
foreclosure  of  a  mechanic's  lien,  similar  principles  to  the  above 
prevail,  both  generally,  and  with  reference  to  prior  incumbrances. 
Sullivan  v.  Decker,  12  L.  0.  109.  A  party  plaintiff  will  equally 
be  bound  by  the  decree  in  foreclosure,  if  adverse  to  any  rights 
he  may  claim.     Iloyt  v.  Marterise,  8  How.  196. 

Ejectment^ — In  ejectment,  the  proper  defendants  now  appear 
to  be  all  persons  claiming  an  adverse  title  in  their  own  right, 
or  their  heirs  at  law,  if  deceased,  and  also  the  person  in  actual 
p  ion  of  the  premises.     Sec  Waldcrph  v.  Bortle,  4  How. 

858.  That  the  tenant  in  possession  is  a  necessary  party  in  such 
an  action,  is  al  io  laid  down  iii  EUicott  v.  Moster,  11  Barb.  574; 
Fosgate  v.  Herkimer  Manufacturing  and  Hydraulic  Company,  12 
B  rb.852.  [n  the  latter  case  it  was  likewise  held  that  parties 
interest  to  the  plaintills,  though  not,  in  pos- 
session, might  properly  1"'  joined  under  sec.  118,  in  order  to  a 
c  implete  determination  of  the  controversy ;  but  in  Van  Buren 
v.  Coclcburn^  J  I  Barb,  118,  it  was  decided  that  a  person  standing 


PARTIES  TO  AN  ACTION.  77 

in  this  last  position  was  not  a  necessary  party.  Where,  how- 
ever, defendants  were  not  actually  in  possession,  and  never  had 
been,  nor  received  any  rents  since  the  plaintiff's  interest  was 
acquired,  it  was  held  that  they  were  improperly  joined.  Van 
Home  v.  Everson,  13  Barb.  526. 


§  31.    Parties  Defendants — Rules  under  Code. 

We  come  now  to  the  peculiar  provisions  of  the  Code  itself,  in 
reference  to  the  parties  who  may,  or  ought  to  be  made  defend- 
ants, and  to  the  decisions  thereon. 

Assignee  of  a  Chose  in  Aclion.~\ — Of  course  the  alteration  of  the 
previous  law  with  respect  to  the  assignment  of  choses  in  action, 
arising  out  of  contract,  is  equally  applicable  to  the  case  of  a  de- 
fendant, as  to  that  of  a  plaintiff,  and  such  assignee  may  be  sued 
as  well  as,  sue  in  respect  of  matter  arising  thereout. 

In  Cook  v.  Genesee  Mutual  Insurance  Company,  8  IIow.  514,  it  was 
held  that  assignees  of  portions  of  an  entire  demand,  who  had  not 
received  their  shares,  were  proper  parties  in  a  suit  instituted  by 
another  standing  in  the  same  capacity ;  but  that  it  would  not 
be  necessary  to  join  others  who  had  received  their  proportions. 

Husband  and  Wife,  Lunatics,  <£c] — The  husband  of  a  married 
woman  must,  as  a  general  rule,  be  joined  as  a  co-defendant  with 
her  in  every  case,  except  where  the  suit  is  one  between  them- 
selves as  parties.  There  can  be  no  doubt  but  that  this  rule 
holds  good,  even  when  the  suit  is  concerning  her  separate  pro- 
perty, or  she  is  sued  in  a  representative  capacity. 

Although  husband  and  wife  may  possess  distinct  interests  in 
the  same  subject-matter,  the  joinder  of  both  in  the  same  action 
will  be  no  ground  of  objection.  Conde  v.  Shephard,  4  How.  75  ; 
2  C.  E.  58.  See  this  subject  fully  considered  in  a  preceding 
portion  of  the  chapter. 

The  same  doctrine  will  of  course  hold  good  as  respects  luna- 
tics or  idiots,  or  habitual  drunkards  and  their  committees. 

In  relation  to  the  necessity  of  a  married  woman  appearing  by 
her  guardian  or  next  friend,  see  heretofore  under  the  head  of 
Parties  Plaintiffs. 

Infants.~] — An  infant  must  appear  by  guardian,  and  no  pro- 


78  PARTIES  TO  AN  ACTION. 

ceeding  in  the  suit  will  be  valid  until  such  guardian  is  ap- 
pointed, (see  Kellogg  v.  Klock,  2  C.  K.  28,)  but  he  must  be  made 
party  in  his  own  name,  and  the  summons  served  according  to 
the  special  directions  in  sec.  184.  In  S locum  v.  Hooker,  6  How. 
167 ;  10  L.  0.  49,  12  Barb.  563,  it  was  held  at  special  term  that, 
where  one  of  several  joint  contractors  was  an  infant,  he  was  not 
a  necessary  party  to  a  suit  on  the  joint  contract,  and  that  he 
might  be  disregarded  entirely  in  bringing  an  action  against  the 
firm.  This  decision  has,  however,  been  reversed  by  the  Gene- 
ral Term.  See  13  Barb.  536.  In  Brown  v.  McCune,  S  Sandf. 
224,  it  was  held  that  an  action  could  not  be  maintained  against 
an  infant  for  goods  obtained  by  him  during  his  minority,  even 
though  by  his  own  fraudulent  representations  as  to  his  real  age. 

Joint  or  Several  Liabilities.'] — By  sec.  120,  it  is  declared  that, 
as  formerly,  in  actions  against  parties  severally  liable  upon  the 
same  obligation  or  instrument,  including  the  parties  to  bills  of 
exchange  and  promissory  notes,  all  or  any  of  such  parties  may 
be  included  in  the  same  action,  at  the  option  of  the  plaintiff.  If, 
however,  he  bring  separate  actions,  he  does  so  at  the  risk  of 
being  only  allowed  one  set  of  costs,  under  sec.  304.  In  Enos  v. 
T/iomas,  4  How.  48,  it  was  held  that  a  contract,  with  a  guaranty 
signed  at  its'  foot,  was,  for  the  purposes  of  an  action  founded 
thereon,  to  be  considered  as  one  instrument ;  and  that  the  party 
who  signed  the  guaranty  there  in  question,  was  properly  joined 
as  co-defendant  with  the  party  to  the  contract,  as  it  stood  before 
the  guaranty  was  subjoined.  See,  however,  Brewster  v.  Sleure, 
1 1  Barb.  144,  to  the  effect  that  such  a  guaranty  will  not  be 
v;ilid  under  the  Statute  of  Frauds,  unless  a  consideration  be  ex- 
pi  •■  1  upon  its  face;  and,  see  the  subject  of  the  liability  of 
parties  under  instruments  of  this  description,  hereafter  fully 
idered  under  the  head  of  Complaint. 

Trustees  for  Creditors,  &c. — In  the  Bank  of  North  American. 
Suydam,  1  0.  Et.  (N.  S.)  325,  6  How.  379,  it  was  held  that,  in  an 
aside  an  assignment  for  the  benefit  of  creditors,  on 
the  ground  of  a  fraudulent  preference  given  to  one  of  their  body, 
the  ail  m  i  well  brought  against  the  parties  to  the  assignment 
and  the  preferred  creditors  alone,  and  that  the  other  creditors 
for  whom  provision  was  made  were  not  necessary  parties.  In 
such  :i  ca  e  the  a  represents  all  the  creditors  interested 

in  the  tin  b,      Hi    defi  nee  is  their  defence,  in  the  same  manner 


PARTIES  TO  AN  ACTION.  79 

as  an  executor  represents  the  estate  intrusted  to  him;  and  the 
case  of  Orover  v.  Wakeman,  4  Paige,  23,  and  11  Wendell,  187,  is 
referred  to  as  settling  the  question. 

In  Scudder  v.  Voorhis,  5  Sandf.  271,  it  was  held  that,  in  a  bill 
filed  to  set  aside  an  assignment  for  the  benefit  of  creditors  as 
fraudulent,  it  was  sufficient  to  make  the  trustee  a  party  defend- 
ant, without'joining  the  beneficiaries  under  the  trust.  See  also 
Johnson  v.  Snyder,  7  How.  395,  holding  that  a  trustee  appointed 
by  the  court  in  the  place  of  an  assignee  for  the  creditors  of  one 
of  the  partners,  is  a  necessary  party  to  an  action  for  taking  an 
account  of  the  partnership  estate.  In  the  same  case,  it  was  sub- 
sequently held  that  the  creditors  protected  by  that  assignment 
were  necessary  to  be  brought  in.     Johnson  v.  Snyder,  8  How.  498. 

Unknown  Defendant.'] — Where,  at  the  time  of  commencing  the 
action,  the  real  defendant  is  unknown,  the  plaintiff  may  sue  in 
a  fictitious  name,  amending  when  the  true  one  is  discovered, 
sec.  175.     See  Pindar  v.  Black,  4  How.  95. 

Superfluous  Parties.] — In  Hull  v.  Smith,  8  How.  281,  and 
Broionson  v.  Gifford,  8  How.  389,  it  was  held  that  the  introduc- 
tion of  superfluous  parties  as  defendants,  was  no  ground  for  de- 
murrer, though  of  course  as  a  general  rule  it  will  be  most  inex- 
pedient to  do  so. 

Joinder  of  Recusant  Parties.] — By  sec.  119,  provision  is  made 
for  the  joinder  as  defendants  of  any  parties  who,  in  strictness, 
ought  to  be  plaintiffs,  but  refuse  to  be  joined  as  such  ;  a  provi- 
sion analogous  in  all  respects  to  the  rules  of  the  old  chancery 
practice. 

Defendant  for  a  Class.] — Under  the  same  section,  power  is 
given  for  one  or  more  defendants  of  a  class  to  defend  for  the 
benefit  of  the  whole,  where  that  class  is  very  numerous,  or  it 
may  be  impracticable  to  bring  all  the  parties  composing  it  be- 
fore the  court.;  except,  however",  under  very  unusual  circum- 
stances, it  would  scarcely  be  prudent  to  omit  joining  every 
party  really  interested  in  the  first  instance. 

Defendants  necessary  in  certain  cases.] — In  Niles  v.  Randall,  2 
C.  E.  31,  it  was  held,  that,  in  an  action  to  set  aside  a  mortgage 
as  usurious,  brought  against  an  assignee  of  that  mortgage,  the 
original  mortgagee  was  properly  made  a  defendant.   N.B. — The 


80  PARTIES  TO  AN  ACTION. 

Reporter's  head  note  is  the  direct  reverse  of  the  statement  in  the 
body  of  the  report. 

Where,  too,  the  plaintiff  in  a  judgment  creditor's  suit  at- 
tempted to  reach  moneys  due  on  a  mortgage,  alleged  to  be 
fraudulently  assigned,  it  was  held  that  the  assignee  of  that 
mortgage  must  be  made  a  party,  though  he  resided  out  of  the 
State.     Gray  v.  Schenck,  4  Comst.  460. 

In  Kidd  v.  Denrmon,  6  Barb.  9,  it  was  held  that  the  vendee 
of  an  estate  was  a  necessary  party  to  a  bill  filed  by  the  vendor, 
to  stay  waste  on  the  premises,  pending  the  contract  for  sale, 
and  before  its  completion. 

In  an  action  brought  by  the  receiver  under  a  creditor's  bill, 
to  reach  property  in  the  hands  of  the  trustees  of  a  judgment 
debtor,  the  latter  was  held  to  be  a  necessary  party.  Vander- 
pool  v.  Van  Valkenburgh,  2  Seld.  190. 

In  an  action  against  the  owner  of  property,  under  the  Mecha- 
nics' Lien  Law,  brought  by  a  sub-contractor,  the  contractor  is 
a  necessary  party,  and,  on  application,  will  be  ordered  to  be 
brought  in.  Sullivan  v.  Decker,  12  L.  0. 109.  The  former  chan- 
cery practice  on  this  subject,  as  referred  to  in  the  outset  of  the 
chapter,  may  advantageously  be  consulted. 

§  31.  Bringing  in  of  Parlies,  Necessary  Defendants. 

The  first  provision  on  this  subject  is  made  by  sec.  118,  by 
which  the  fullest  latitude  is  given  for  the  bringing  in  as  defend- 

CD  O         O 

ants,  of  any  persons  having  or  claiming  interests  adverse  to  those 
of  plaintiffs,  or  who  may  be  necessary  parties  to  a  complete  de- 
termination and  settlement  of  the  questions  involved  in  the  cause ; 
though,  of  course,  any  plaintiff  joining  persons  as  defendants, 
whose  interests  in  the  matter  in  controversy  are  doubtful,  does 
so  at  the  risk  of  having  to  pay  the  costs  of  such  parties,  in  case 
it  shall  be  decided  that  they  were  unnecessarily  brought  in.  See 
Hai  i  v.  Hammersl  //,  7  L.  O.  127. 

General  Power  as  to  Parties."] — By  section  122,  however,  the 
couj  !  with  the  fullest  discretionary  authority  in  rela- 

tion to  tl  '    a  proceeding,  generally  considered,  without 

ence  to  the  capa  in  which  they  may  stand,  or  their 

'  joindi  rin  i be  previous  proceedings, 
provision  in  question,  which  in  its  present  form  forms 
part  '■!'  th':  amendments  of  L851,  run:-  as  follows: 


PARTIES  TO  AN  ACTION.  81 

§  122.  The  court  may  determine  any  controversy  between  the  parties 
before  it,  when  it  can  be  done  without  prejudice  to  the  rights  of  others, 
or  by  saving  their  rights ;  but  when  a  complete  determination  of  the 
controversy  cannot  be  had  without  the  presence  of  other  parties,  the 
court  must  cause  them  to  be  brought  in.  And  when,  in  an  action  for 
the  recovery  of  real  or  personal  property,  a  person,  not  a  party  to  the 
action,  but  having  an  interest  in  the  subject  thereof,  makes  application 
to  the  court  to  be  made  a  party,  it  may  order  him  to  be  brought  in  by 
the  proper  amendment. 

The  first  clause  in  this  section  was  in  the  Code  of  1849,  and 
is  little  more  than  declaratory  of  the  inherent  powers  of  the 
courts,  acting  as  courts  of  equity,  to  enforce  the  bringing  in  of 
all  proper  parties,  in  relation  to  the  controversies  brought  before 
them.  The  substitution  of  the  word  "  must"  for  the  word 
"  may,"  in  the  last  words  of  that  clause,  is,  however,  important 
and  seems  to  leave  them  no  discretion  in  this  respect,  in  cases 
where  any  party  claiming  a  really  adverse  interest  has  been 
omitted  to  be  brought  in.  In  Wallace  v.  Eaton,  5  How.  99,  3 
C.  R.  161,  it  was  held  that  this  is  the  controlling  section  in  cases 
of  a  demurrer  for  want  of  proper  parties.  The  next  clause, 
the  first  of  those  brought  in  by  the  amendment  of  1851,  enables 
persons,  not  parties  to  suits  for  the  recovery  of  property,  but 
having  an  interest  therein,  to  apply,  themselves,  to  the  court, 
for  the  purpose  of  being  brought  in  by  amendment,  without 
waiting  for  the  action  of  the  original  parties  thereto;  an  im- 
portant and  novel  provision. 

In  Fraser  v.  OreenMU,  3  C.  R.  172,  it  was  held  that,  where  an 
attachment  has  been  issued  against  a  debtor's  property  under  the 
Code,  any  other  creditors  of  that  debtor  may  not  only  be  pro- 
per parties  to  the  suit,  but  may  apply  to  the  court  for  the  pur- 
pose of  being  brought  in  as  such.  In  Judd  v.  Young,  however, 
7  How.  79,  a  similar  application  by  subsequent  creditors  claim- 
ing an  interest  in  surplus  moneys  under  a  prior  foreclosure  was 
refused,  on  the  ground  that  the  provisions  of  sec.  122,  under 
which  the  application  was  made,  were  confined  to  actions  for  the 
recovery  of  specific  real  or  personal  property,  and  to  them  alone ; 
and  this  seems  to  be  the  sounder  view,  for  it  would  indeed  be  a 
great  hardship  to  a  creditor,  to  have  his  proceedings  embarrassed 
by  the  presence  of  persons  who  are  entire  strangers  to  the  main 
subject  of  the  suit,  and  whose  only  claim  can  be  in  respect  of  a 
6 


82  PARTIES  TO  AN  ACTION. 

surplus,  which  cannot  arise  until  after  the  satisfaction  of  his  debt, 
and  in  which  he  has  therefore  no  interest  whatever. 


§  32.     Interpleader. 

The  following  provisions  on  this  subject  are  also  contained  in 
s.  122,  above  cited,  and  were  first  inserted  in  1851. 

A  defendant,  against  whom  an  action  is  pending  upon  a  contract,  or 
for  specific  real  or  personal  property,  may,  at  any  time  before  answer, 
upon  affidavit  that  a  person,  not  a  party  to  the  action,  and  without  col- 
lusion with  him,  makes  against  him  a  demand  for  the  same  debt  or  pro- 
perty, upon  due  notice  to  such  person  and  the  adverse  party,  apply  to 
the  court  for  an  order  to  substitute  such  person  in  his  place,  and  dis- 
charge him  from  liability  to  either  party,  on  his  depositing  in  court  the 
amount  of  the  debt,  or  delivering  the  property,  or  its  value,  to  such  per- 
son as  the  court  may  direct;  and  the  court  may,  in  its  discretion,  make 
the  order. 

This  amendment  was  doubtless  suggested  by  the  English  sta- 
tute 1  and  2  William  IV.,  c.  58,  on  the  same  subject. 

In  Van  Buskirh  v.  Roy,  8  How.  425,  this  remedy  was  extend- 
ed to  a  defendant  who  held,  as  administrator,  a  promissory  note, 
the  title  to  which  was  disputed  by  two  parties.  In  Chamber- 
lain v.  O'Connor,  8  How.  45,  it  was  held  that  this  remedy  is  in- 
applicable to  proceedings  under  the  mechanics'  lien  act.  Except 
these  two  decisions,  the  recent  reports  are  silent  upon  the  sub- 
ject; and  until  the  proper  construction  of  this  provision  shall 
have  been  laid  down  more  in  detail,  the  English  books  of  prac- 
tice may  advantageously  be  consulted  upon  the  question.  It 
will  be  observed  that  the  powers  of  the  court  upon  this  subject 
are  entirely  discretionary,  and  that  the  relief  so  asked  can  only 
be  asked  as  a  matter  of  favor,  and  not  of  right.  The  operation 
of  the  court,  too,  is  confined  to  actions  ex  contractu,  or  for  the 
recovery  of  specific  real  or  personal  property.  The  party  ap- 
plying must  prove  entire  good  faith  on  his  part,  and  entire  ab- 
of  collusion  with  the  party  proposed  to  be  substituted  in 
his  place;  and  he  must  also  place  the  subject-matter  of  contro- 
versy within  the  control  of  the  court,  entirely  and  without  re- 
Dnder  these  circumstances,  and  under  these  only,  can 
the  application  be  made;  and  a  failure  in  any  one  of  these  re- 
quisites will,  of  course,  be  fatal  to  it,  and  would  probably  involve 


PARTIES  TO  AN  ACTION.  83 

the  payment  of  costs.  If  it  succeed,  however,  the  applicant  ob- 
tains a  complete  release  from  the  controversy  and  its  conse- 
quences, and  the  substituted  party  takes  his  place  in  all  respects. 
Of  course  this  remedy  is  entirely  inapplicable  to  cases  where 
the  party  seeking  it  retains  any  claim  or  interest  whatever  in 
the  subject-matter  of  the  controversy,  or  is  in  reality  directly 
liable,  as  in  the  case  of  an  advertised  reward  claimed  by  sev- 
eral, or  in  those  where  he  has  otherwise  given  occasion  for 
that  controversy  by  his  own  acts.  It  is  simply  and  solely 
intended  to  meet  the  case  of  a  mere  depositary,  or  holder  of 
that  subject-matter,  in  an  official,  ministerial,  or  fiduciary  ca- 
pacity, either  original,  or  attaching  by  implication,  under  occur- 
rences accruing  subsequent  to  its  original  coming  into  his 
possession.  A  party  into  whose  hands  money  or  goods  may 
have  come  in  the  ordinary  course  of  business,  for  safe  custody, 
and  to  be  thereafter  accounted  for  to  the  proper  owners,  may 
also  become  entitled  to  this  remedy;  and  it  would  seem,  from 
some  of  the  English  cases,  that  the  existence  of  a  mere  lien 
upon  such  goods,  for  charges  in  respect  of  such  custody,  which 
lien  does  not  in  its  nature  attach  specially  on  either  of  the 
claimants,  and  involves  no  assertion  of  ownership  in  any  part 
thereof,  will  not  be  a  bar  to  such  an  application ;  though  any 
claim  of  actual  ownership,  or  ligitation  in  respect  thereof,  in 
any  part  of  such  deposit,  however  small,  will  be  held  to  be  so. 
A  purchaser  of  land,  unable  to  pay  his  purchase-money  to  one 
or  other  of  two  parties  claiming  title  to  the  estate  contracted  to 
be  sold,  has  also  been  held  in  England  to  be  a  proper  subject 
for  this  species  of  relief.  Any  dealing  with  either  of  the  par- 
ties, calculated  to  alter  their  interest  in  the  subject-matter  in 
question,  or  to  give  either  of  those  parties  an  independent  right 
against  the  depositary,  the  taking  of  any  indemnity  from  either, 
or  any  illegality  in  the  original  transaction,  out  of  which  the  de- 
posit arose,  will  of  course  do  away  with  the  bona  fides  of  the 
application,  and  form  an  effectual  bar  to  it,  as  showing  collusion. 
The  reverse,  however,  seems  to  be  the  case  with  regard  to  a 
mere  demand  of  indemnity,  prior  to  the  action,  when  not  com- 
plied with.  It  is  evident  that  no  remedy  of  this  kind  exists 
before  action  brought;  and,  of  course,  if  the  party  prefer  to  insti- 
tute a  separate  suit  for  the  same  purpose,  it  is  competent  for  him 
to  do  so,  though  probably  at  the  risk  of  costs,  if  such  separate 
suit  prove  to  be  clearly  unnecessary. 


84  LIMITATION  OF  ACTIONS. 

The  proper  mode  of  applying  for  this  species  of  relief,  or  that 
last  previously  mentioned,  would  appear,  by  analogy,  to  be  by 
motion,  founded  on  a  duly  verified  petition.  The  latter  appears 
to  be  advisable,  if  not  necessary,  inasmuch  as  either  of  such  ap- 
plications must,  of  necessity,  be  grounded  upon  a  substantive 
statement  of  facts,  unconnected  with  the  matter  regularly  in 
question  in  the  cause ;  and  it  is  of  course  necessary  that  such 
statement  should  be  duly  brought  before  the  court,  and  should 
duly  appear  upon  the  face  of  the  order  granted  upon  it,  or 
rather  upon  the  petition,  as,  in  effect,  part  of  the  order,  — 
so  that  the  circumstances  under  which  the  court  has  exer- 
cised its  discretion  in  the  matter  may  be  duly  apparent  upon 
the  record. 

Concluding  Remarks. 

The  subject  of  abatement  of  suits,  and  the  measures  necessary 
thereon,  will  be  found  considered  hereafter  in  that  portion  of  the 
work  which  treats  of  the  proceedings  intermediate  between 
the  original  joinder  of  issue  and  its  trial. 


CHAPTER      III. 

OF    THE    LIMITATION    OF    ACTIONS. 
§  33.   Limitations,  generally  considered. 

This  subject,  as  was  the  case  with  the  last,  divides  itself  na- 
turally, in  the  first  instance,  into  two  branches,  involving  the 
consideration  of  the  limitation  of  actions,  as  applicable, — lstly, 
with  reference  to  real,  and  2dly.  to  personal  property.  These 
two  different  subjects  will  according^  be  treated  of  successively 
in  the  above  order ;  the  preliminary  provision  of  the  Code,  abo- 
lisbing  the  former  law  thereon,  being  previously  noticed;  a 
few  supplementary  observations,  applicable  to  the  limitation  of 
actions  in  general,  being  subjoined  at  the  conclusion  of  the 
chapter. 

The  provisions  of  the  Code  on  these  subjects  arc  contained  in 
the  second  title  of  p;irt  IT.  of  that  measure,  and  consist  of  four 
chapters.     The  three  last  of  these  follow  the  order  above  pre- 


LIMITATION  OF  ACTIONS.  35 

scribed;  the  first  being  of  a  general  and  preliminary  nature,  and 
containing  only  two  sections. 

By  section  73,  the  first  of  those  last  alluded  to,  the  whole  of 
the  provisions  of  that  chapter  of  the  Eevised  Statutes  which  con- 
tains the  general  statute  law  on  this  subject,  are  expressly 
repealed ;  so  that,  in  relation  to  all  future  controversies,  the  Code, 
and  the  Code  alone,  will  henceforth  be  authority. 

As  to  actions  commenced,  or  rights  accrued  previously  to  its 
passage,  the  old  law  still  governs.  See  Waddel  v.  Elmendorf,  12 
Barb.  585,  affirmed  by  the  Court  of  Appeals,  18th  April,  1854, 
holding  a  similar  doctrine  with  reference  to  a  judgment  reco- 
vered prior  to  the  passing  of  the  Eevised  Statutes.  See  also 
Clark  v.  Bard,  Court  of  Appeals,  31st  December,  1853;  Hen- 
dersonv.  Cairns,  14  Barb.  15;  and  likewise,  as  to  the  doctrine  of 
adverse  possession,  Poor  v.  Horton,  15  Barb.  485 ;  Fosgate  v.  Her- 
kimer Manufacturing  and  Hydraulic  Company,  9  Barb.  287. 

Where,  however,  a  previous  right  of  action  stood  already 
barred  at  the  actual  time  of  that  passage,  it  was  held  that  a  sub- 
sequent parol  acknowledgment  of  that  right,  though  sufficient  to 
have  revived  it  under  the  former  statutes,  had  no  such  effect ;  the 
Code  being  in  actual  operation  at  the  time  such  acknowledg- 
ment took  place,  and  the  provisions  of  section  90  being  applica- 
ble accordingly,  without  attributing  to  those  provisions  any 
retrospective  effect  whatsoever.  The  alleged  verbal  promise  was 
a  transaction  subsequent  to  the  passage  of  the  Code,  and  was, 
as  such,  governed  by  the  statute  law  in  existence  at  the  time  of 
its  actual  making.  Wadsworth  v.  Thomas,  7  Barb.  445  ;  3  C.  E. 
227. 

The  other  introductory  section,  (74,)  after  general  provisions 
in  relation  to  the  following  limitations,  contains  a  further  general 
reservation  of  all  other  cases  in  which  a  special  limitation  is  pre- 
scribed by  statute,  independent  of  the  provisions  repealed  as 
above,  which  special  limitations  will  be  treated  of  as  they  occur. 

An  important  provision  has  been  added  at  the  conclusion  of 
this  section,  on  the  amendment  of  the  measure  in  1851,  i.e.,  that 
objections  of  this  nature  can  only  be  taken  by  answer.  No  re- 
striction in  this  respect  was  imposed  by  the  Codes  either  of  1848 
or  1849 ;  and  in  Fellers  v.  Lee,  2  Barb.  488,  it  was  treated  as  a 
well-settled  rule,  that,  when  actually  apparent  on  the  face  of  the 
complaint,  demurrer  would  lie  on  this  ground. 

In  reference  to  limitations  in  general,  it  may  be  remarked  that 


86  LIMITATION  OF  ACTIONS. 

so  long  as  a  right  remains  suspended  and  vested  in  no  one,  the 
operation  of  the  statute  is  suspended  also.  Thus,  in  a  case  where 
an  action  was  brought  by  an  administrator,  in  respect  of  pro- 
perty received  after  the  intestate's  death,  but  before  administra- 
tion taken  out,  it  was  held  that  the  statute  did  not  commence 
running  until  the  latter  date.  Buchlin  v.  Ford,  5  Barb.  S93. 

In  Carroll  v.  Carroll,  11  Barb.  293,  where  an  executor  had  held 
himself  out  to  devisees,  as  engaged  in  winding  up  the  testator's 
estate,  and  discharging  prior  claims,  it  was  decided  that  whilst 
he  was  doing  or  professing  to  do  this,  the  statute  would  not  run 
in  his  favor,  and  that  each  act  of  his  in  the  administration  of  the 
estate  was  effectual  as  an  acknowledgment  of  his  continuous 
acting  as  executor.  A  surrogate's  decree,  however,  directing  a 
pro  rata  payment  of  a  debt,  does  not,  per  se,  amount  to  a  promise 
on  the  part  of  an  administratrix  to  pay  the  balance,  so  as  to  de- 
prive her  of  the  benefit  of  the  statute,  Arnold  v.  Downing,  11 
Barb.  554 ;  nor  does  a  devise  by  a  testator  for  the  payment  of 
debts  generally,  prevent  the  statute  from  running  as  against  debts 
due  prior  to  his  decease.  Martin  v.  Gage,  Court  of  Appeals, 
31st  Dec,  1853. 

§   34.   Real  Estate,  Limitations  as  to. 

We  now  arrive  at  the  consideration  of  the  limitations  imposed 
on  actions  for  the  recovery  of  real  property,  as  contained  in 
chap.  II.  of  the  title  in  question. 

Actions  by  People.] — The  first  subject  entered  upon  is  that  of 
actions  by  the  people  of  this  State,  or  their  grantees. 

The  limits  imposed  in  this  respect  are  as  follows,  viz.:  that 
the  people  or  their  grantees  cannot  sue  in  respect  of  real  pro- 
perty, by  reason  of  the  title  of  the  former,  unless, 

1.  Sucb  right  have  accrued  within  forty  years  previous  to 
action,  or  other  proceeding  for  its  assertion  ;  or 

2.  Unless  the  people,  or  those  from  whom  they  claim,  shall 
have  received  the  rents  and  profits  of  such  real  property,  or 
some  part  thereof,  within  the  same  period;  Code,  sec.  75:  and 
by  Bee.  76,  the  Bame  limitation  is  imposed  upon  grantees  of  the 
people,  claiming  under  their  grants.  By  section  77,  this  period 
of  limitation,  in  the  ease  there  provided  for,  is  shortened  by  one 
half,  and  twenty  years  only  arc  allowed  for  bringing  actions  by 


LIMITATION  OF  ACTIONS.  87 

the  people,  or  their  grantees,  in  cases  where  a  recovery  is  sought 
of  lands  previously  granted,  but  the  grants  of  which  have  been 
revoked,  on  the  ground  of  fraud  or  of  defective  title. 

In  interpreting  these  sections,  however,  the  right  of  eminent 
domain,  by  virtue  of  which  the  people  are  the  unquestioned 
owners  of  all  waste  and  unoccupied  lands  within  the  State,  must 
not  be  overlooked,  or  a  most  serious  mistake  may  be  committed. 
Extensive  as  the  words  of  the  above  limitations  may  seem,  in 
practice  they  only  apply  to  cases  where  there  has  been  positive 
adverse  possession  (actual  and  not  constructive,  and  capable  of  dis- 
tinct proof)  of  the  whole  matter  in  controversy,  during  the  whole 
of  the  period  of  limitation.  The  onus  probandi  in  such  cases 
lies,  moreover,  upon  the  defendant,  who  must  plead  the  facts,  or 
show  an  adverse  title  in  himself  by  special  allegation.  A  mere 
averment,  that  no  right  has  accrued  to  the  people  within  forty 
years,  &c,  following  the  words  of  the  above  section,  was  held 
in  T/ie  People  v.  Van  Rensselaer,  8  Barb.  189,  to  be  insufficient, 
and  a  demurrer  on  that  ground  was  allowed ;  but  see  below  as 
to  reversal  of  this  decision. 

This  decision  is  also  so  far  overruled  by  the  case  of  The  People 
v.  Arnold,  4  Comst.  508,  where  an  answer,  following  the  exact 
words  of  the  statute,  was  held  to  be  good,  as  pleading  the  facts 
of  the  case,  and  not  the  evidence  in  support.  It  was  held,  how- 
ever, that,  on  the  trial  itself,  an  unquestionable  and  actual  ad- 
verse possession  must  be  shown. 

In  The  People  v.  Van  Rensselaer,  above  cited,  the  rule  that,  in 
such  cases,  every  presumption  is  to  be  made  on  behalf  of  the 
people,  and  against  parties  claiming  in  opposition  to  them ;  and 
that  the  mere  fact  of  lands  having  been  actually  unoccupied,  is 
of  itself  sufficient  to  show  a  prima  facie  title  on  their  part, 
unless  rebutted  by  distinct  evidence  of  actual  adverse  possession, 
or  of  adverse  documentary  title,  is  laid  down  in  the  most  une- 
quivocal terms,  and  to  the  fullest  extent  of  the  high  prerogative 
doctrines  held  in  the  older  English  cases  upon  similar  subjects. 
See  however  The  People  v.  Clarke,  below  cited ;  and  the  decision 
in  The  People  v.  Van  Rensselaer  has  since  been  reversed  by  the 
Court  of  Appeals,  31st  Dec.  1853. 

In  Tlie  People  v.  Livingston,  8  Barb.  253,  similar  principles 
are  also  most  distinctly  and  most  unequivocally  asserted,  though, 
under  the  peculiar  circumstances  of  that  case,  the  prima  facie 
title  of  the  people,  as  above  alluded  to,  was  rebutted  by  proof 


88  LIMITATION  OF  ACTIONS. 

of  an  old  grant  from  the  English  crown,  under  which,  title  to 
the  waste  lands  there  sought  to  be  recovered,  had  been  origin- 
ally conferred  upon  the  parties  claiming  to  hold  them. 

In  The  People  v.  Clarke,  10  Barb.  120,  affirmed  by  the  Court 
of  Appeals,  31st  Dec.  1853,  an  action  on  behalf  of  the  people 
was  dismissed,  on  the  ground  of  the  defendant's  title  being  de- 
rived under  a  similar  grant ;  and  it  was  held  that  the  same  rules 
with  respect  to  adverse  possession  should  be  applied  to  an  action 
between  the  people  and  a  citizen,  as  between  one  citizen  and 
another,  provided  such  possession  be  continued  for  the  full  sta- 
tutory period. 

The  dispositions  of  the  Legislature  upon  this  particular  subject 
are  evidenced  by  the  resolution  of  10th  April,  1848,  see  Laws 
of  1848,  page  582,  expressly  directing  the  Attorney-General  to 
impeach  all  manorial  titles  throughout  the  State,  wherever  it 
may  be  found  practicable;  and  by  the  provisions  of  c.  128  of 
the  Laws  of  1850,  declaring  that  proceedings  so  instituted  by 
him,  shall  have  precedence  over  all  others.  The  above  cases  go 
far,  however,  to  neutralize  any  evil  effect  that  might  attend  too 
rigid  a  compliance  with  these  directions. 

Actions  by  Private  Parties.  Adverse  Possession.'] — The  period 
of  limitation  in  ordinary  real  estate  cases,  is  fixed  by  sections  78 
and  79  at  twenty  years,  as  under  the  Revised  Statutes;  within 
which  period,  the  party  prosecuting  or  defending  a  claim  to  or 
in  resj)ect  of  real  property,  must  show  seizin  in  himself  or  his 
ancestor,  predecessor,  or  grantor ;  whilst,  by  section  80,  a  bare 
entry  is  declared  insufficient  to  establish,  or  to  strengthen  a 
claim,  unless  an  action  be  commenced  thereon  within  one  year 
after,  and  also  within  the  period  above  prescribed. 

Mere  possession  of  the  property,  not  adverse  to  the  right  of 
a  claimant,  is,  under  section  81,  to  be  deemed  subordinate  to 
the  legal  title  :  and,  in  every  action,  the  person  establishing  such 
. !  title  is  to  be  presumed  to  have  been  duly  possessed,  unless 
the  contrary  be  shown.  Under  sec.  8(3,  the  possession  of  a  ten- 
ant, at  any  time,  is  to  be  deemed  the  possession  of  the  land- 
Lord,  until  the  expiration  of  twenty  years  from  the  termination 
of  the  tenancy,  or  the  last  payment  of  rent;  whilst,  by  sec.  87, 
it  is  expre  ly  declared  that  no  right  to  property  shall  be  affect- 
ed,  by  reason  of  a  del  icen  t  being  cast,  by  the  death  of  the  person 
in  actual  possession. 


LIMITATION  OF  ACTIONS.  89 

The  doctrine  of  adverse  possession  is  defined  by  the  chapter 
now  under  consideration,  as  follows,  i.  e. 

Where  it  shall  appear  that  the  occupant,  or  his  predecessors 
in  title,  entered  into  possession  of  premises  under  claim,  of  title, 
exclusive  of  any  other  right  founded  upon  a  written  conveyance, 
or  upon  the  decree  of  a  competent  court,  and  that  there  has 
been  a  continued  possession  of  such  premises,  or  of  part  of  them, 
under  such  claim,  for  twenty  years,  such  possession  shall  be 
deemed  adverse.  And  such  adverse  possession  shall  extend  to 
the  whole  property,  of  which  a  part  has  been  so  held,  except 
where  that  property  shall  consist  of  a  tract  divided  into  lots,  in 
which  latter  case,  the  possession  of  one  lot  shall  not  be  deemed 
that  of  another  of  the  same  tract. — Sec.  82. 

By  sec.  83,  the  premises  comprised  within  the  scope  of  an 
adverse  possession  of  this  nature  are  defined  to  be  as  follows, 
viz: 

1.  All  land  usually  cultivated  and  improved. 

2.  All  land  protected  by  a  substantial  enclosure. 

3.  All  unenclosed  land  used  for  the  supply  of  fuel  or  fencing 
timber. 

4.  Any  portions  of  a  partially  improved  farm  or  lot,  left  un- 
cleared or  unenclosed,  according  to  the  usual  course  or  custom 
of  the  neighboring  country. 

An  inferior  species  of  adverse  possession  may  also,  under  sec. 
84,  be  acquired  by  actual  continued  occupation,  under  a  claim 
of  title,  exclusive  of  any  other  right,  but  not  founded  either  on 
a  written  instrument,  or  on  the  decree  of  a  court. 

Adverse  possession  of  this  nature  extends,  however,  only  to 
land  which  has  been  actually  occupied  by  the  party  claiming 
such  title;  and,  by  sec.  85,  such  actual  occupation  is  defined  as 
extending  to  the  two  following  cases,  and  to  those  only,  i.  e. : 

1.  Where  the  land  has  been  protected  by  a  substantial  en- 
closure. 

2.  Where  it  has  been  usually  cultivated  or  improved. 
Possession  of  this  nature  confers,  therefore,  no  such  rights 

with  regard  to  unenclosed  land,  as  are  claimable  under  title 
founded  upon  a  written  instrument,  or  the  decree  of  a  court,  as 
before  stated.  Under  sec.  86,  adverse  possession  can  in  no 
case  be  established  by  a  party  who  has  once  stood  in  the  rela- 
tion of  tenant  to  the  claimant,  or  his  predecessors  in  claim,  until 
the  full  period  of  limitation  shall  have  expired  since  the  termi- 


90  LIMITATION  OF  ACTIONS. 

nation  of  his  lease,  or  the  time  of  the  last  payment  of  rent  under 
his  tenancy,  where  no  lease  shall  have  existed. 

In  Miller  v.  Garlock,  8  Barb.  153,  it  was  held  that  the  conti- 
nuous and  uninterrupted  user  of  an  easement  for  twenty  years, 
under  a  claim  of  right,  was  an  adverse  enjoyment  sufficient  to 
raise  the  presumption  of  a  grant,  as  against  the  owners  of  the 
lands  affected  by  it;  and  that  the  right  to  an  easement  thus 
acquired  could  only  be  lost  by  non-user  of  twenty  years,  (espe- 
cially if  coupled  with  acts  of  such  owners  inconsistent  with  the 
right,)  or  by  a  release. 

In  Smith  v.  McAllister,  14  Barb.  434,  it  was  in  like  manner 
held  that  acquiescence  in  an  erroneous  boundary  line  for  a 
length  of  time  sufficient  to  bar  an  entry,  was  sufficient  to  raise 
the  presumption  of  an  agreement,  and  to  defeat  an  ejectment  on 
the  part  of  the  adjoining  owner. 

A  similar  conclusion  was  come  to  in  Hamilton  v.  White,  1  Seld. 
9,  where  a  right  of  way  originally  enjoyed  by  the  defendants, 
had  been  closed  by  the  plaintiff,  and  another  road  opened  in  its 
stead.  The  substituted  way  having  been  closed  by  him,  it  was 
held  that  he  was  bound  to  restore  the  former  one,  and  that  the 
defendants  were  not  trespassers  on  the  substituted  road,  until 
the  old  one  was  restored  to  its  former  condition. 

In  Lane  v.  Gould,  10  Barb.  254,  the  nature  of  adverse  pos- 
session with  reference  to  open  and  unenclosed  woodlands  is 
defined  in  extenso.  The  possession  there  claimed  was  not  conti- 
nuous as  to  any  specified  portion  of  the  property,  but  consisted  in 
taking  wood  at  various  times,  and  in  occasionally  enclosing  and 
cultivating  small  portions  for  a  single  season.  It  was  held  that 
this  species  of  enjoyment  was  not  sufficient  to  constitute  a  title, 
and  that,  to  make  out  an  adverse  possession,  where  there  is  no 
deed,  there  must  be  a  real  substantial-  enclosure,  a  "pedis  pos- 
session or  an  usual  cultivation  or  improvement  of  the  premises, 
continued  for  a  sufficient  length  of  time,  and  accompanied 
throughout  by  a  claim  of  title.  It  is  not  necessary  that  this  oc- 
cupancy should  be  under  a  rightful  title,  but  it  must  be  marked 
by  definite  boundaries,  and  continued  for  a  sufficient  period. 
See  also  OD  these  points, /"W  v.  JInrton,  below  cited.  It  was  also 
held  with  reference  to  a  claim  under  a  deed,  that  the  only  effect 
of  ,-i  paper  title  was  to  enlarge  and  extend  the  possession  so  as 
to  include  tl";  entire  lot  described;  but  that,  if  the  instrument 
claim'1!  under  contain  no  certain  and  ascertainable  description, 


LIMITATION  OF  ACTIONS.  91 

it  cannot  have  the  effect  of  extending  the  possession  beyond  the 
u  pedis  possession  which  is  definite,  positive,  and  notorious. 

In  Poor  v.  Horton,  15  Barb.  485,  it  was  held  that  where  an 
entry  had  been  made  on  wild  lands,  but  not  proved  by  whom, 
"the  presumption  was  that  such  entry  was  permissive  and  not. 
in  hostility  to  the  true  title."  It  was  also  held,  that  an  eject- 
ment for  uncultivated  lands  might  be  maintained  without  actual 
entry,  and  likewise,  that  an  adverse  claimant  in  possession  may 
legally  abandon  or  release  his  rights,  and  will  be  concluded  by 
his  acts  in  this  respect.  See  also  on  this  last  point  Lindner  v. 
Snyder,  15  Barb.  621. 

In  Vrooman  v.  Shepherd,  14  Barb.  441,  it  was  held  that  a  re- 
lease could  not  properly  be  executed  by  a  tenant  by  the  curtesy 
to  the  heir,  when  both  were  out  of  possession.  The  possession 
of  a  vendee  under  a  contract  may  be  adverse  as  against  strangers, 
but  cannot  become  so  to  his  vendor,  until  after  performance  in 
full  by  him ;,  if,  however,  there  has  been  such  full  performance, 
a  conveyance  may  be  presumed,  the  vendee  still  remaining  in 
possession ;  and  it  seems  that  if,  in  the  absence  of  all  proof  on 
the  subject,  the  latter  continues  in  undisturbed  possession,  per- 
formance by  him  may  be  presumed,  after  the  lapse  of  twenty 
years  from  the  time  when  he  should  have  performed. 

If  the  grantee  in  fee  enter  in  the  lifetime  of  the  grantor,  and 
hold  both  lands  and  deed,  for  a  period  sufficient,  if  adverse,  to 
bar  an  entry,  in  the  absence  of  other  evidence,  the  character 
of  his  possession  may  be  ascertained  from  the  language  of  the 
deed,  and,  if  that  professes  to  convey  an  estate  in  fee,  the  infer- 
ence that  both  entry  and  possession  were  adverse  will  be  irresist- 
ible; Corivin  v.  Corwin,  9  Barb.  219;  so  held  by  a  majority  of 
the  court  at  general  term,  Barcido,  J.,  dissenting. 

The  facts  constituting  an  adverse  occupation  must  be  specific- 
ally alleged,  or  it  will  be  no  defense.  As  against  a  reversioner 
there  cannot  be  an  adverse  possession;  it  can  only  exist  as 
against  a  person  entitled  at  the  time.  Clarke  v.  Hughes,  13 
Barb.  147. 

It  seems  that  the  people  and  private  individuals  are  placed  on 
the  same  footing  with  regard  to  the  facts,  which  will,  or  will  not 
constitute  an  adverse  possession,  as  against  them  respectively. 
See  the  People  v.  Clarice,  above  cited. 

Disabilities.] — Lastly,  by  sec.  88,  the  disabilities  which  suspend 


92  LIMITATION  OF  ACTIONS. 

the  operation  of  the  statute  in  real  estate  cases  are  thus  denned, 
i.  e. : — 

If,  at  the  time  that  the  title  to  real  property  shall  descend  or 
accrue  to  any  person,  that  person  shall  be — 

1.  A  minor. 

2.  Insane. 

3.  Imprisoned  on  a  criminal  charge,  or  on  execution,  upon 
conviction  of  a  crime,  for  a  term  less  than  for  life ;  or, 

4.  A  married  woman. 

The  operation  of  the  statute  is,  in  all  these  cases,  to  be  sus- 
pended until  ten  years  after  such  disability  shall  cease,  or  after 
the  death  of  the  person  under  such  disability. 

The  provisions  of  sec.  100,  in  reference  to  the  absence  from 
the  State  of  parties  against  whom  a  cause  of  action  shall  accrue, 
seem  also  applicable  to  real  estate  cases,  though  included  in 
another  chapter  of  the  Code.  The  subject  will  be  more  fully 
entered  upon  in  the  subsequent  division  of  this  chapter. 

The  periods  of  disability  above  cited  are  the  same  as  those 
under  the  former  law ;  though  the  Old  Rules  on  this  subject, 
with  reference  to  actions  arising  in  respect  of  personal  property, 
have  undergone  a  considerable  change,  as  will  be  seen  hereafter. 
In  fact,  as  regards  real  estate  actions  in  general,  no  change  of 
any  moment  has  been  made  in  the  former  law  upon  the  subject. 

In  Roe  v.  Swezey,  10  Barb.  247,  it  was  held  that  a  suit,  having 
directly  or  indirectly  the  effect  of  charging  real  estate  in  the 
hands  of  heirs  with  the  debt  of  their  ancestor,  could  not,  under 
any  circumstances,  be  commenced  within  the  three  years'  limi- 
tation fixed  by  statute,  2  R.  S.  46  ;  even  though  that  suit  sought 
to  deprive  them  of  that  character,  and  to  render  them  liable  as 
purchasers  under  a  deed  of  trust. 


§  35.  Personal  Actions,  Limitations  as  to. 

The  Btatutory  provisions  fixing  the  periods  of  limitation  in 
actions  other  than  for  the  recovery  of  real  property,  are  thus 
fixed  by  Chapter  [II.  of  that  portion  of  the  Code  now  under 
considiT.'ilion  : 

Judgments  and  Sealed  Instrumented — The  first  period  of  limit- 
ation fixed,  is  with  reference  to  actions, 


LIMITATION  OF  ACTIONS.  93 

1.  Upon  a  judgment  or  decree  of  any  court  of  the  United 
States,  or  of  any  State  or  Territory  within  them ;  or, 

2.  Upon  a  sealed  instrument : 

Which,  by  sec.  90,  are  fixed  at  twenty  years  in  each  case ; 
and  that  by  way  of  positive  limitation,  and  not  as  a  presumption 
of  payment,  as  the  law  before  stood  under  the  provisions  of  the 
Revised  Statutes  repealed  as  above.  See  as  to  the  law  under 
these  provisions,  before  their  repeal,  Carll  v.  Hart,  15  Barb.  565. 

The  former  law  on  the  subject  of  pleading  a  presumption  of 
this  nature,  as  declared  in  Austin  v.  Tompkins,  3  Sandf.  22,  is 
therefore  become  obsolete ;  but,  nevertheless,  the  principle  laid 
down  in  that  case,  i.  e.,  that  where  a  judgment  has  been  taken 
against  executors,  for  assets  "quando  acciderint,"  that  judgment 
will  still  remain  in  force,  and  the  parties  holding  it  may  enforce 
it  at  any  time  as  against  assets  subsequently  accrued,  at  how- 
ever late  a  period,  may  probably  be  held  to  be  still  existent, 
even  under  the  present  more  positive  limitation. 

The  words  of  the  statute  seem  large  enough  to  include  the 
judgments  of  courts  not  of  record ;  but  the  doctrine  that  a  judg- 
ment of  this  nature  is  only  a  mere  contract,  and  is  suable  upon, 
and  subject  to  limitation  as  such,  would  appear  to  have  pre- 
vailed, in  analogy  to  the  provisions  of  the  Revised  Statutes  in 
relation  thereto.  See  on  this  point  in  Re  Delacroix,  1  Brad- 
ford's Surrogates'  Reports  1,  as  to  a  Surrogate's  decree ;  and 
Maguire  v.  Gallagher,  2  Sandf.  402 ;  1  C.  R.  127,  as  to  justices' 
judgments. 

Where,  however,  the  lien  of  a  judgment  on  real  estate  has 
ceased  by  lapse  of  time,  the  court  will  interfere  as  regards  the 
rights  of  bona  fide  purchasers  thereof,  and  will  grant  a  perpetual 
stay  of  execution,  so  far  as  their  interests  are  concerned.  Wilson 
v.  Smith,  2  C.  R.  18. 

Six  Years.~] — The  period  of  limitation  of  actions  generally 
considered,  including  suits  for  relief  on  the  ground  of  fraud, 
remains,  as  before,  six  years ;  and  the  actions  falling  within  that 
limitation  are  thus  defined  by  sec.  91  of  the  Code : 

§  91.  Within  six  years. 

1.  An  action  upon  a  contract,  obligation,  or  liability,  express  or  im- 
plied ;  excepting  those  mentioned  in  section  90. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty 
or  forfeiture 


94  LIMITATION  OF  ACTIONS. 

3.  An  action  for  trespass  upon  real  property. 

4.  An  action  for  taking,  detaining,  or  injuring  any  goods  or  chattels, 
including  actions  for  the  specific  recovery  of  personal  property. 

5.  An  action  for  criminal  conversation,  or  for  any  other  injury  to 
the  person  or  rights  of  another,  not  arising  on  contract,  and  not  here- 
inafter enumerated. 

6.  An  action  for  relief,  on  the  ground  of  fraud,  in  cases  which  here- 
tofore were  solely  cognizable  by  the  Court  of  Chancery ;  the  cause  of 
action  in  such  case  not  to  be  deemed  to  have  accrued,  until  the  disco- 
very by  the  aggrieved  party,  of  the  facts  constituting  the  fraud. 

In  actions  on  contract,  where  credit  has  been  given  by  special 
stipulation,  the  operation  of  the  statute  will  date  from  the  period 
of  the  expiration  of  the  credit  so  given,  without  regard  to  the 
date  of  the  original  transaction.  In  those  for  an  injury,  or  for 
statutory  penalties,  the  time  will  run  from  the  actual  commis- 
sion of  the  offence  sued  upon,  or  by  which,  the  penalty  was 
incurred. 

The  point  as  to  actions  on  the  judgments  of  courts  not  of 
record,  as  supposed  to  fall  under  the  class  of  actions  on  con- 
tract, under  subdivision  1  of  the  above  section,  has  been  before 
adverted  to. 

In  Corning  v.  M' 'C 'ullough,  1  Comst.  47,  a  suit  against  a  stock- 
holder of  a  corporation,  pursuant  to  its  act  of  incorporation, 
with  a  view  to  charge  him  individually  with  payment  of  a  debt, 
was  held  not  to  be  an  action  for  a  penalty,  under  subdivision  2 
of  sec.  92,  but  to  fall  within  subdivision  No.  2  of  the  above 
provisions. 

In  cases  of  trover,  the  statute  was  held  to  run  from  the  actual 
conversion  of  the  property,  without  regard  to  the  time  of  demand 
and  refusal,  in  Kelsey  v.  Grisivold,  6  Barb.  436. 

In  Schro&ppel  v.  Coming,  10  Barb.  576,  affirmed  by  the  Court 
of  Appeals,  2  Seld.107,  it  was  held  that,  in  an  action  brought  to 
sot,  aside  an  assignment  of  securities  made  as  part  of  an  usurious 
transaction,  the  statute  will  commence  running  from  the  date  of 
that  ;i  Bignment,  both  as  regards  the  assignment  itself,  and  also 
as  to  any  moneys  paid  under  it:  Paige  and  Foote,  J. J.,  dis- 
cing from  the  latter  conclusion,  and  holding  that  the  receipt 
of  such  moneys  created  a  new  cause  of  action. 

In  Sears  v.Shafer,  2  Seld.  208,  the  rule  as  to  subdivision  6 is 
laid  down  as  follows:  Tlie  statute  docs  not  constitute  a  defence 
to  ,-,  suit,  in  equity  to  set  aside  a  deed  on  the  ground  of  fraud, 


LIMITATION  OF  ACTIONS.  95 

unless  it  be  shown  that  the  plaintiffs  discovered  the  facts  con- 
stituting that  fraud  more  than  six  years  before  the  filing  of  the 
bill ;  nor  unless  that  defence  has  been  set  forth  by  the  defend- 
ants in  their  answer. 

In  Mayne  v.  Griswold,  3  Sandf.  463,  the  rule  as  to  the  ope- 
ration of  the  statute  under  these  circumstances,  was  held  to  be 
general,  and  to  apply  in  all  cases  of  that  nature,  whether  exclu- 
sively cognizable  in  equity,  or  the  reverse ;  and  it  would  seem 
that  the  complaint,  in  such  cases,  ought  to  go  on  to  show,  not 
merely  that  the  fraud  has  only  been  discovered  within  six  years, 
but  that,  with  reasonable  diligence,  it  could  not  have  been  dis- 
covered sooner. 

In  Bcdrd  v.  Walker,  12  Barb.  298,  1  C.  E.  (N.  S.)  329,  it  was 
held  that  where  goods  have  been  left  with  a  factor  for  sale  by 
commission,  the  owner  has  no  cause  of  action  for  the  price  of 
such  goods  received  by  him,  until  a  demand  and  refusal  to  pay# 
the  same ;  and  that  the  statute  of  limitations  does  not  commence 
to  run  until  such  demand  has  been  made. 

The  general  principle  of  limitation  of  personal  actions  having 
thus  been  laid  down,  the  following  special  exemptions  are  made 
from  its  operation : 

Three  Years.] — A  period  of  three  years  is  prescribed  by  sec. 
92,  in  the  following  cases : 

§  92.  Within  three  years. 

1.  An  action  against  a  sheriff,  coroner,  or  constable,  upon  a  liability 
incurred  by  the  doing  of  an  act  in  his  official  capacity,  and  in  virtue  of 
his  office,  or  by  the  omission  of  an  official  duty;  including  the  non- 
payment of  money  collected  upon  an  execution.  But  this  section  shall 
not  apply  to  an  action  for  an  escape. 

2.  An  action  upon  a  statute,  for  a  penalty  or  forfeiture,  where  the 
action  is  given  to  the  party  aggrieved,  or  to  such  party  and  the  people 
of  this  State,  except  where  the  statute  imposing  it  prescribes  a  different 
limitation. 

In  The  People  v.  Wood,  10  L.  O.  61,  where  the  defendant  was 
indicted  for  obtaining  money  under  false  pretences,  under  2  E. 
S.  607,  which  prescribes  that  the  indictment  shall  be  found  and 
filed  within  three  years  after  the  commission  of  the  offence,  it 
was  held  that  the  day  on  which  the  act  is  done  must  be  included 
in  the  computation  :    and  the  indictment,  on    7th  November 


96  LIMITATION  OF  ACTIONS. 

1851,  for  an  offence  committed  7th  November,  1848,  was  quash- 
ed, as  barred  by  the  statute  above  cited. 

"With  reference  to  subdivision  2  of  this  last  section,  see  Corn- 
ing v.  McCullough,  above  cited. 

Two  Years.] — A  two  years'  limitation  is  then  fixed  as  follows, 
by  sec.  93 : 

§  93.  Within  two  years. 

1.  An  action  for  libel,  slander,  assault,  battery,  or  false  imprisonment- 

2.  An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the  people 
of  this  State. 

These  periods  are  in  many  respects  materially  reduced  from 
those  allowed  by  the  Eevised  Statutes,  with  the  single  exception 
of  slander.  The  former  periods  were  four  years,  in  assault, 
battery,  and  false  imprisonment,  and  six  in  libel. 

One  Year.'] — A  one-year  limitation  is  prescribed  by  sec.  94, 
with  reference  to  actions  against  a  sheriff  or  other  officer  for  an 
escape,  in  connection  with  which,  it  may  be  observed  that  the 
subsequent  death  of  an  escaped  prisoner,  before  action  brought, 
is  no  discharge  of  such  liability.  See  Tanner  v.  Hallenbeck,  4 
How.  297. 

A  peculiar  limitation  is  fixed  by  section  96,  in  respect  of 
actions  upon  a  statute  for  a  penalty  or  forfeiture,  given  in 
whole,  or  in  part,  to  the  prosecutor.  Such  actions  must  be 
commenced  by  the  latter  within  one  year  after  the  commission 
of  the  offence.  If  not,  his  power  to  sue  is  gone,  but  a  further 
period  of  two  years  is  allowed,  during  which  such  action  may 
be  commenced  on  the  part  of  the  people,  by  the  proper  officer. 

In  Srhroeppel  v.  Coming,  10  Barb.  576,  affirmed  by  the  Court 
of  Appeals,  2  Seld.  107,  it  was  held  that  the  last-mentioned 

1  i m it.it  i >nly  applies  to  cases  where  money  is  actually  paid  for 

f  usury,  and  not  to  a  suit  brought  to  set  aside  an  as- 
iment  i  if  securities  for  similar  purposes,  orfor  moneys  received 
under  such  assignment.  Under  these  circumstances,  the  usual 
statutory  period  of  six  years  is  applicable. 

Tt  n  Years.]  -Lastly,  the  period  of  limitation  in  all  other  actions 
for  relief  whatsoever,  not  therein-before  provided  for,  is  fixed, 
by  Bection  97,  at  ten  years  after  the  cause  of  action  shall  have 
accrued.  Under  this  large  class  will  fall  the  whole  of  that  de- 
scription   of  controversies  which  were  formerly  peculiarly  of 


LIMITATION  OF  ACTIONS.  97 

equitable  cognizance,  including  all  those  for  the  purpose  of  en- 
forcing any  securities  or  liens  upon  real  estate,  not  involving 
the  actual  title  thereto.  See  Elwood  v.  Deifendorf,  5  Barb.  398 ; 
Mann  v.  Fairchild,  14  Barb.  548. 

The  special  limitation  as  to  actions  for  relief  on  the  ground  of 
fraud,  above  noticed,  must  however  be  borne  in  mind  with  refer- 
ence to  suits  of  this  description. 

An  administrator,  who  neglected  to  prove  his  debt  against 
the  estate  of  the  intestate  for  ten  years  and  upwards,  was  held 
to  have  lost  his  claim,  and  to  be  barred  under  this  section  of 
the  statute.     Re  Rogers'  Administrator,  11  L.  0.  245. 

Personal  Actions  by  People.] — The  people  of  the  State  enjoy  no 
such  peculiar  privileges,  in  respect  to  personal  demands,  as  are 
before  accorded  to  them  in  reference  to  real  estate;  they  are,  in 
these  cases,  subject  in  all  respects  to  the  same  rules  as  bind  pri- 
vate parties.     See  Code,  sec.  98. 

Actions  on  Judgments.'] — Before  passing  on  to  the  subject  of 
limitations  in  general,  the  following  special  provisions,  in  addi- 
tion to  the  above,  may  be  noticed : 

Actions  upon  judgments  of  any  court  of  this  State,  except  a 
court  of  a  justice  of  the  peace,  are  positively  prohibited  by  sec. 
71,  unless  upon  leave  of  the  court,  for  good  cause  shown,  on 
notice  to  the  adverse  party ;  and  actions  upon  judgments  of  a 
justice  of  the  peace  cannot  be  brought  in  the  same  county,  within 
five  years  after  their  rendition,  except  under  the  following  cir- 
cumstances: 

1.  The  death,  resignation,  incapacity  to  act,  or  removal  from 
the  county,  of  the  justice  himself. 

2.  The  absence  of  personal  service  of  process  on  the  defend- 
ant, or  all  the  defendants. 

3.  The  death  of  some  of  the  parties. 

4.  The  loss  or  destruction  of  the  docket  of  the  judgment. 
But  it  would  seem  that  the  plaintiff  is  always  at  liberty  to 

bring  an  action  thereon,  in  any  other  county,  within  that  period. 
In  Smith  v.  Jones,  2  C.  K.  78,  the  above  limitation,  in  reference 
to  actions  on  justices'  judgments,  was  applied  by  the  county 
judge  to  the  pleading  of  such  a  judgment,  as  a  set-off,  within  the 
same  period;  and  it  was  held  that  a  judgment  could  not  be  so 
pleaded,  within  five  years  after  its  rendition. 
7 


98  LIMITATION  OF  ACTIONS. 

A  conflict  of  opinion  has  arisen,  between  the  Superior  Court 
and  the  Court  of  Common  Pleas,  in  reference  to  actions  in  as- 
sistant justices'  courts.  In  McGuire  v.  Gallagher,  2  Sandf.  402, 
1  C.  R.  127,  it  was  considered  that  they  came  under  the  defini- 
tion of  justices'  courts;  but  in  Mills  v.  Winsloiv,  3  C.  R.  44,  it 
was  held,  on  the  contrary,  they  did  not;  and  that  actions  on 
the  judgments  of  the  assistant  justices'  and  Marine  Court  in 
New  York,  fall  under  the  general  class  of  judgments,  and  that 
actions  may  be  brought  on  them  at  any  time,  on  leave  of  the 
court  first  obtained.  See,  also,  Jackson  v.  Wheedon,  3  C.  R.  186, 
before  cited.  The  Common  Pleas  being  now  the  peculiar  court 
for  the  revision  of  justices' judgments,  the  doctrine  laid  down 
by  them  will  probably  prevail.  In  Quick  v.  Keeler,  2  Sandf. 
231,  and  Dunham  v.  Nicholson,  2  Sandf.  636,  it  was  held  that, 
when  an  execution  had  been  returned  unsatisfied  prior  to  the 
Code,  an  action  in  the  nature  of  the  former  creditors'  suit  might 
be  maintained  on  the  judgment  on  which  it  was  issued,  without 
previous  leave  of  the  court ;  on  the  ground  that,  though  assum- 
ing the  form  of  an  action,  it  was  in  reality  a  proceeding  to  carry 
out  the  existing  judgment,  and  to  aid  the  process  issued 
upon  it. 

Claims  against  Executors,  <frc.] — A  special  limitation  is  also 
prescribed  by  the  Revised  Statutes,  2  R.  S.  89,  sec.  38,  in  refer- 
ence to  claims  presented  to  an  executor  or  administrator,  and 
disputed  or  rejected  by  him;  an  action  on  which  must,  of  neces- 
sity, be  commenced  within  six  months  after  such  dispute  or 
rejection,  if  the  debt  be  then  due;  or,  if  not,  then  within  six 
months  after  the  same,  or  any  part  thereof,  shall  have  become  so, 
or  the  right  to  bring  such  action  will  be  barred. 

Defence  after  Service  by  Publication. —  A  peculiar  limitation  is 
imposed  by  sec.  135  of  the  Code,  in  reference  to  proceedings  for 
the  purpose  of  being  let  in  to  defend  an  action,  where  judgment 
lias  been  entered  up  on  service  by  publication ;  seven  years 
being  fixed  as  the  period  allowed  for  that  purpose. 

Actioneon  Hunk  Notes,  dx.] — By  section  108,  actions  to  enforce 
the  payment  of  bills,  &c,  issued  by  moneyed  corporations,  or 
issued  or  put  in  circulation  as  money,  may  be  commenced  at  any 
time  without  any  limitation  whatever. 


LIMITATION  OF  ACTIONS.  99 

§  36.  Suspension  of  Limitations. 

The  next  point  to  be  considered,  is  that  as  to  the  circum- 
stances under  which  the  operation  of  the  statute,  as  a  bar,  is 
either  wholly  or  partially  suspended. 

In  Actions  against  Banking  Corporations^] — The  suspension  of  its 
operation,  in  respect  of  transactions  where  credit  has  been  given, 
or  where  fraud  has  been  committed  but  not  discovered,  has  been 
before  alluded  to ;  and  of  a  similar  nature  are  the  provisions 
in  section  109,  by  which  actions  against  the  directors  or  stock- 
holders of  a  moneyed  corporation,  or  banking  association,  to 
recover  a  penalty  or  forfeiture  imposed,  or  to  enforce  a  liability 
created  by  law,  may  be  brought  at  any  time  within  six  years 
after  the  discovery,  by  the  aggrieved  parties,  of  the  facts  upon 
which  such  penalty  or  forfeiture  attached,  or  such  liability  was 
created,  without  reference  to  the  period  when  such  facts  actu- 
ally occurred. 

The  operation  of  the  statute  may  be  also  suspended, 

1st.  By  disability  of  the  parties. 

2d.  By  part  payment  or  written  acknowledgment  of  the  claim, 
which  points  will  be  successively  considered. 

Absence  from  State.] — The  first  disability  treated  of  by  the 
Code,  is  that  of  absence  from  the  State,  in  reference  to  which, 
it  is  provided  by  section  100 :  That  the  original  absence  of  a 
defendant  from  the  State,  at  the  time  that  a  cause  of  action  shall 
accrue  against  him,  shall  entirely  suspend  the  running  of  the 
statute*  until  the  full  period  shall  have  elapsed  after  his  return 
to  the  State  ;  and  further,  that  if,  after  the  accruer  of  such  cause 
of  action,  such  person  shall  depart  from  and  reside  out  of  the 
State,  the  time  of  his  absence  shall,  in  like  manner,  be  excluded 
in  the  computation  of  the  period  of  limitation. 

In  the  Code  of  1819,  a  mere  departure  from  the  State  was 
sufficient  to  suspend  the  operation  of  the  statute;  but  now, 
under  the  last  amendment,  it  must  be  a  departure  and  residence. 
The  animus  revertendi  will,  accordingly,  be  an  element  which 
must  necessarily  enter  into  any  future  decisions  on  the  subject. 

A  conflict  of  opinion  has  occurred  between  the  Supreme  and 
the  Superior  Courts,  on  the  subject  of  this  limitation.  In  Coley. 
Jessup,  2  Barb.  309,  it  was  held  by  the  former,  that  any  one 


100  LIMITATION  OF  ACTIONS. 

return  into  the  State  was  sufficient  to  take  the  case  out  of  the 
operation  of  this  provision,  and  that  no  other  absence,  subse- 
quently occurring,  could  be  taken  into  consideration.  In  Ford 
v.  BabcocJc,  2  Sandf.  518,  7  L.  O.  270,  it  was  held  by  the  latter, 
on  the  contrary,  that  if  there  be  successive  absences  of  a  party 
to  the  action,  they  must  be  accumulated,  and  the  aggregate  of 
them  deducted  from  the  term  of  limitation.  A  return,  however 
short,  without  residence,  is  nevertheless  sufficient  to  set  the  sta- 
tute into  motion  in  the  first  instance ;  and  it  was  also  held,  in 
the  last  case,  that  the  provisions  of  it  were  equally  applicable 
to  residents  or  non-residents.  The  earlier  decisions  on  this  sub- 
ject are  fully  reviewed  in  Ford  v.  BabcocJc,  and  are  various  and 
contradictory.  The  recent  amendment  will,  however,  remove 
much  of  the  previous  difficulty,  inasmuch  as  residence  out  of 
the  State  is  made  a  further  condition,  and  mere  absence  will  no 
longer  suspend  the  operation  of  the  statute,  when,  by  any  re- 
turn, for  however  short  a  period,  it  has  once  commenced  to  run. 

The  Court  of  Appeals  has  since  confirmed  the  doctrine  of  the 
Superior  Court,  and  reversed  the  contrary  decision  on  appeal,  in 
the  case  of  Cole  v.  Jessujo,  18th  April,  1854 — where  it  is  held  in 
terms,  that,  when  there  are  successive  absences  from  the  State  by 
the  debtor,  the  same  may  be  accumulated,  and  the  aggregate  of 
the  whole  deducted  from  the  period  of  limitation.  It  was  also 
held  that  the  latter  branch  of  the  above  provision,  as  it  stood  in 
similar  terms  in  the  Eevised  Statutes,  applied  no  less  to  cases 
where  the  debtor  resided  out  of  the  State  when  the  cause  of 
action  accrued,  and  subsequently  came  into  it,  than  to  those 
where  he  was  a  resident  of  the  State  at  such  time. 

In  Bogart  v.  Vermihjea  1,  C.  E.  (N.  S.)  212,  affirmed  by  the 
Court  of  Appeals,  12th  April,  1853,  it  was  decided  that  the  statute 
does  not  run  against  one  of  two  makers  of  a  joint  and  several 
promissory  note,  while  he  is  residing  in  a  foreign  country,  though 
the  other  remains  a  resident,  and  the  action  in  the  mean  time 
becomes  barred  against  him,  see  10  Barb.  32.  In  relation  to 
the  conjoint  effect  of  absence  from  the  State,  and  the  death  of 
the  debtor  during  such  ubsencc,  see  Davis  v.  Garr,  and  Christo- 
pher* v.  Qarr,  2  Seld.  61,  124,  below  cited,  under  the  head  of 
Death  of  Party  interested. 

The  law  as  to  the  pleading  of  a  foreign  statute  of  limitations 
by  an  alien,  or  a  oitizeD  of  another  State,  will  be  found  fully  gone 
into  in  Judge  Story's  admirable  treatise  on  the  Conflict  of  Laws, 


LIMITATION  OF  ACTIONS.  .  101 

chap.  XIV.  sec.  576  to  583  inclusive.  The  conclusion  come  to 
is,  that,  as  regards  statutes  of  this  nature,  the  lex  fori  will  pre- 
vail, and  that  the  operation  of  a  foreign  law  of  limitations, 
however  unquestionable  as  the  lex  loci,  cannot  be  pleaded  in  bar 
of  an  action  brought  within  this  State,  within  the  usual  period 
after  the  coming  of  the  party  into  it,  except  probably  in  those 
rare  cases  where  the  operation  of  such  statute  shall  have  taken 
away  the  actual  right  itself  sought  to  be  enforced,  and  not 
merely  the  power  of  enforcing  it. 

Other  Disabilities.]— The  next  disabilities  touched  upon  are 
laid  down  by  sec.  101,  as  follows: — 

§  101.  If  a  person  entitled  to  bring  an  action  mentioned  in  the  last 
chapter,  except  for  a  penalty  or  forfeiture,  or  against  a  sheriff  or  other 
officer  for  an  escape,  be,  at  the  time  the  cause  of  action  accrued,  either : 

1.  Within  the  age  of  twenty-one  years  ;  or, 

2.  Insane;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  under  the  sen- 
tence of  a  criminal  court,  for  a  term  less  than  his  natural  life ;  or, 

4.  A  married  woman. 

The  time  of  such  disability  is  not  a  part  of  the  time  limited  for  the 
commencement  of  the  action,  except  that  the  period  within  which  the 
action  must,  be  brought  cannot  be  extended  more  than  five  years  by  any 
such  disability,  except  infancy,  nor  can  it  be  so  extended,  in  any  case, 
longer  than  one  year  after  the  disability  ceases. 

In  the  Code  of  1851,  the  disabilities  here  provided  for  were 
extended  to  the  case  of  a  party  entitled  to  bring  an  appeal,  but 
on  the  recent  amendment  those  words  have  been  struck  out. 

The  conclusion  of  the  supplementary  clause  is  one  of  the  re- 
cent amendments. 

It  effects  a  most  important  alteration  of  the  previous  law  on 
the  subject,  and  one  most  essential  to  be  strictly  borne  in  mind 
in  practice.  Of  course  this  restriction  is  not  retrospective,  and 
can  only  be  held  to  apply  to  rights  accrued  at  the  time  of  the 
passing  of  the  amended  measure.  By  sec.  106,  it  is  made  essen- 
tial to  the  assertion  of  the  above,  or  any  other  disabilities,  that 
they  should  be  in  existence  at  the  time  when  the  right  of  the 
party  asserting  them  accrued.  Where,  however,  two  or  more 
disabilities  are  co-existent  at  that  time,  the  limitation  will  not 
attach  until  all  are  removed.     The  cessation  of  one  or  more, 


102  LIMITATION  OF  ACTIONS. 

whilst  any  other  remains  existent,  will  have  no  operation  what- 
ever; sec.  107. 

Death  of  Party  interested.  Statute  as  for  and  against  Executors, 
&c.~\ — The  case  of  the  death  of  a  person  entitled  to  bring  an 
action  is  next  provided  for  by  sec.  102.  The  executor  or  admi- 
nistrator of  such  a  person  may,  in  all  cases,  prosecute  such  cause 
of  action,  if  it  be  one  that  survive,  at  any  time  within  one  year 
after  the  death  of  the  party  in  question,  although  the  limitation 
may  in  the  meantime  have  run  out.  Under  the  same  section,  an 
action  may  be  brought  against  the  executors  or  administrators 
of  a  party  who  shall  have  died  within  the  period  of  limitation, 
within  one  year  after  the  issuing  of  letters  testamentary,  or  of 
administration,  without  regard  to  the  interim  expiration  of  that 
period.  In  Bucklin  v.  Ford,  5  Barb.  393,  before  cited,  it  was 
held,  in  accordance  with  these  principles,  that,  where  property 
belonging  to  an  intestate  had  come  into  the  hands  of  a  third 
party  after  his  death,  but  before  the  taking  out  of  letters  of  ad- 
ministration, the  statute  only  commenced  to  run  from  the  latter 
date,  without  regard  to  the  time  of  the  actual  receipt  of  that 
property. 

In  Martin  v.  Gage,  Court  of  Appeals,  31st  December,  1853,  it 
is  laid  down  that,  where  an  executor  is  cited  before  a  surrogate, 
he  may  avail  himself  of  the  statute  in  bar  of  any  claim  pre- 
sented against  the  estate,  in  the  same  manner  as  in  an  action  upon 
it,  and  likewise  that  a  mere  general  devise  for  payment  of  debts 
does  not  prevent  the  statute  from  running  against  debts  not  spe- 
cified, which  were  due  prior  to  the  decease  of  the  testator. 

In  Cltrisbjphers  v.  Garr,  2  Seld.  61,  it  is  held  that,  where  a  resi- 
dent debtor  goes  out  of  the  State,  and  dies  without  returning, 
the  statute  runs  in  favor  of  the  administrator,  after  six  years 
from  the  lime  frhen  the  debt  becomes  due,  excluding  the  time 
from  the  d(  nurture  of  the  debtor  from  the  State,  until  eighteen 
month  .ili'i  hifl  death,  (the  period  then  prescribed  under  the 
licvised  State' 

In  /a,w  /  v.  <!<irr,  2  Seld.  121,  (the  note,  in  that  case  not  hav- 
ing become  due  till  after  the  departure  of  the  intestate,)  it  was 
held  tli.it,  where  a  debtor  resides  out  of  the  State  at  the  time 
when  the  cause  of  action  accrues,  and  until  his  death,  the  sta- 
tute only  commend  a  to  PUD  from  the  time  of  granting  admi- 
nistration in  this  State. 


LIMITATION  OF  ACTIONS.  103 

Alien  Enemy.'] — The  law  as  it  formerly  stood  in  reference  to 
the  statute  not  running  in  the  case  of  an  alien  enemy,  during  the 
continuance  of  the  war  with  this  country,  is  declared  by  section 
103. 

Reversal  of  Judgment,  Effect  of] — The  reversal,  on  appeal,  of  the 
judgment  on  an  action  commenced  within  the  periods  of  limita- 
tion, confers  a  fresh  right  of  action  upon  the  plaintiff,  or  his  heirs 
or  representatives,  if  asserted  within  one  year  after  that  rever- 
sal.    Sec.  104 

Injunction  or  Statutory  Prohibition.'] — The  granting  of  an  in- 
junction staying  the  commencement  of  an  action,  or  any  statu- 
tory prohibition  of  the  same  nature,  suspends  the  operation  of 
the  statute  altogether,  during  the  continuance  of  either.  Sec- 
tion 105. 

Account  Current  and  Agency,  Effect  of.'] — The  statute  may  be 
suspended  by  the  operation  of  an  account  current  between  the 
parties;  the  law  on  this  subject  is  thus  laid  down  by  section  95  : 

§  95.  In  an  action  brought  to  recover  a  balance  due  upon  a  mutual 
open,  and  current  account,  where  there  have  been  reciprocal  demands 
between  the  parties,  the  cause  of  action  shall  be  deemed  to  have  accrued 
from  the  time  of  the  last  item  proved  in  the  account  on  either  side. 

It  will  be  seen  that  the  terms  of  this  section  are  considerably 
more  extensive  than  the  analogous  provision  in  the  Eevised  Sta- 
tutes. Under  the  law  as  it  formerly  stood,  it  was  held  in  Hal- 
lock  v.  Losee,  1  Sandf.  220,  that  items  on  one  side  only  were  not 
sufficient  to  take  a  case  of  current  account  out  of  the  statute, 
and  that  there  must  be  items  on  both  sides,  within  the  period  of 
limitation,  to  have  that  effect.  The  present  wording  would,  how- 
ever, seem  to  refer  the  operation  of  the  statute  to  the  date  of  the 
last  item  on  either  side,  in  all  cases,  without  reference  to  there 
being,  or  not  being,  counter  items  of  that  date ;  provided  onty 
the  account,  in  its  general  nature,  be  clearly  one  in  respect  of 
mutual  dealings,  commenced  before,  but  continued  within  the 
period  of  limitation. 

In  Davies  v.  Cram,  4  Sandf.  355,  it  was  held  that  the  statute 
did  not  commence  to  run  against  the  consignor  of  merchandize 
to  a  foreign  port,  until  after  the  account  of  its  sale  by  the  con- 
signee was  received  by  him. 


104  LIMITATION  OF  ACTIONS. 

It  is  not  necessary  that  moneys  collected  by  an  agent  should 
be  formally  demanded  of  him.  He  is  bound  to  give  his  princi- 
pal notice  of  such  collection,  and,  after  a  reasonable  time  from 
the  receipt  of  such  notice,  the  statute  will  commence  to  run. 
Lyle  v.  Murray,  4  Sandf.  590.  The  same  conclusions  are  come 
to  in  Hickok  v.  Hickok,  13  Barb.  632,  with  reference  to  the 
amount  of  a  note  collected  by  a  party  entrusted  for  that  purpose. 

Acknowledgment,  or  Part  Payment,  Effect  of] — We  now  arrive 
at  the  consideration  of  those  cases  in  which  the  operation  of  the 
statute  may  be  suspended  by  the  acknowledgment  of  the  parties. 

The  provision  of  the  Code  in  this  respect  (sec.  110)  is  as 
follows : 

8  110.  No  acknowledgment  or  promise  shall  be  sufficient  evidence 
of  a  new  or  continuing  contract,  whereby  to  take  the  case  out  of  the 
operation  of  this  title,  unless  the  same  be  contained  in  some  writing 
signed  by  the  party  to  be  charged  thereby  ;  but  this  section  shall  not 
alter  the  effect  of  any  payment  of  principal  or  interest. 

This  provision  effects,  as  will  be  seen,  a  material  alteration 
from  the  former  law  on  the  subject,  by  which,  under  certain 
circumstances,  a  parol  acknowledgment  was  sufficient  to  take  a 
case  out  of  the  operation  of  the  statute.  See  Watkins  v.  Stevens, 
4  Barb.  168.  See  also  Sherman  v.  Walceman,  11  Barb.  254, 
affirmed  by  Court  of  Appeals,  7th  October,  1853.  Now,  how- 
ever, nothing  short  of  a  written  acknowledgment,  or  an  actual 
payment,  or  part  payment  of  principal  or  interest,  will  suffice  to 
do  so. 

In  McMullin  v.  Grannis,  10  L.  O.  57,  the  defendant,  having 
previously  accepted  a  draft  in  respect  of  an  original  indebted- 
of  the  plaintiff,  and  having  subsequently  deposited  the  note 
of  a  third  party,  by  different  letters,  within  the  six  years' period, 
acknowledged  that  a  balance  was  due  from  him  on  his  note, 
and.  on  the  second  occasion,  made  a  remittance,  "to  be  applied 
on  account  <»f  his  note."  It  was  held,  under  these  circumstances, 
that  such  letters  amounted  to  a  promise  sufficient  to  take  the 
out  of  the  statute,  and  (there  being  no  evidence  of  any 
other)  thai  the  referee  in  that  case  was  warranted  m  inferring 
that  the  promise  related  f"  the  particular  indebtedness  there  in 

question.      "When  a  promise,  of  this   kind  is  shown,  the  onus 
lies  upon  the  party  setting  up  the  statute  to  show  that  there  was 


LIMITATION  OF  ACTIONS.  105 

another  indebtedness  to  which  it  might  refer,  and,  when  no 
other  indebtedness  appears,  the  promise  will  be  held  to  refer  to 
that  which  was  subsisting  when  the  promise  was  made." 

In  Bloodgood  v.  Bruen — Court  of  Appeals,  18th  July,  1853 — 
it  was  held  that  recognition  of  the  plaintiff's  debt  by  the  defend- 
ant, in  an  answer  in  another  suit  brought  by  a  different  party, 
was  not  sufficient  to  revive  the  claim.  1.  Because  it  was  not 
made  to  the  plaintiff  or  to  any  one  representing  him,  but  to  a 
stranger.  2.  Because  the  admission  was  not  voluntary.  3. 
Because  the  defendant  there  in  question  did  not  make  the 
alleged  admission  in  the  character  of  executor,  in  which  he  was 
sued,  but  in  another;  and,  4.  Because,  if  the  admission  had 
been  made  by  him  in  the  character  of  executor,  it  could  not 
bind  the  estate  of  the  testator.  If  he  could  do  so  in  any  man- 
ner, it  could  only  be  by  a  positive  contract.  It  was  likewise 
held  that  the  party  in  question,  as  surviving  partner,  could  not, 
by  any  act  of  his,  revive  the  debt  as  against  the  estate  of  his 
deceased  partner.  By  this  decision,  the  case  of  Bloodgood  v. 
Bruen,  4  Sandf.  427,  is  wholly  reversed. 

In  Carroll  v.  Carroll,  11  Barb.  293,  acts  of  the  executor  in 
the  management  of  the  estate  were  held  to  be  sufficient  acknow- 
ledgments of  his  continued  liability  as  such,  and  to  prevent  the 
statute  from  running  as  between  him  and  the  devisees.  A  pro 
rata  payment  by  an  administratrix,  under  a  surrogate's  decree, 
was  however  held  to  be  no  promise  on  her  part  to  pay  the 
balance,  so  as  to  deprive  her  of  the  benefit  of  the  statute,  in 
Arnold  v.  Downing,  11  Barb.  554. 

In  cases  of  joint  indebtedness,  the  acknowledgment  of  either 
party  will  of  course  suffice  to  bind  both,  while  the  joint  interest 
subsists.  If,  however,  that  joint  interest  be  severed,  the  subse- 
quent acknowledgment  of  either  of  the  parties  will  not  suffice 
to  revive  it  as  against  the  other.  Thus,  in  Lane  v.  Doty,  4  Barb. 
530,  it  was  held  that  a  surviving  principal  on  a  joint  promis- 
sory note,  could  not  revive  the  debt  by  acknowledgment  or  part 
pa}^ment,  as  against  the  representatives  of  the  surety  deceased, 
even  though  the  transaction  took  place  within  six  years.  In 
Van  Keuren  v.  Parmelee,  2  Comst.  523,  it  was  in  like  manner 
held  that,  after  the  dissolution  of  a  partnership,  a  subsequent 
acknowledgment  by  one  of  the  partners  did  not  avail  to  revive 
the  debt  as  against  the  firm. 

In  Bogert  v.  Vermilyea,  10  Barb.  32,  3  C.  R  142,  it  was  con- 


106  LIMITATION  OF  ACTIONS. 

sidered  that  a  part  pa}rment  by  one  of  two  joint  makers  of  a 
note  did  not  avail  to  revive  the  claim  as  against  the  other ;  the 
decision  being  expressly  grounded  on  Van  Keuren  v.  Parmelee  ; 
and  that  case  was  also  followed  under  similar  circumstances  in 
Dunham  v.  Dodge,  10  Barb.  566. 

In  Eeid  v.lfcNaughton,  however,  15  Barb.  168,  the  principles 
laid  down  in  the  above  cases  were  dissented  from,  and  a  contrary 
conclusion  come  to,  with  reference  to  the  effect  of  a  payment  of 
interest,  by  one  of  two  parties  jointly  and  severally  liable  on  a 
note.  A  distinction  is  drawn  between  the  effect  of  a  payment  of 
interest,  which  of  itself  implies  an  acknowledgment  of  a  debt,  and 
mere  payments  on  account,  such  as  had  been  made  in  the  two 
cases  last  cited.  Great  stress  was  also  laid  upon  the  fact  that  in 
making  such  a  payment,  the  party  doing  so  must  be  considered 
as  an  agent  for  the  other.  A  distinction  is  drawn  between 
that  case  and  Van  Keuren  v.  Parmelee,  where  no  payment  was 
proved,  but  the  case  rested  on  a  mere  acknowledgment  by  one 
partner,  and  that,  after  the  joint  interest  had  been  long  severed 
by  a  dissolution. 

The  case  of  Wadsworth  v.  Thomas,  7  Barb.  445,  3  C.  K.  227, 
before  cited  at  the  commencement  of  this  chapter,  is  distinct 
authority  that  no  promise,  subsequent  to  the  passing  of  the 
Code,  will  avail  to  revive  a  debt  already  barred  by  the  statute, 
previous  to  its  operation,  unless  that  promise  be  in  the  form 
here  prescribed :  although,  had  it  been  made  under  the  old  law, 
it  would  then  have  been  sufficient. 

In  Woodruff  v.  Moore,  8  Barb.  171,  it  was  held  that  the  pay- 
ment of  a  note  by  the  endorser,  after  the  statute  of  limitations 
had  expired,  on  action  brought  against  him  by  the  then  holder 
before  the  statute  had  run  out,  did  not  avail  to  revive  his  claim 
against  the  maker,  against  whom  the  statute  had  also  run.  The 
payment  was  held  to  be  a  payment  on  his  own  contract  as  en- 
dorser,  and  not  to  have  been  money  paid  to  the  use  of  the 
maker. 

An  action  on  a  demand  taken  out  of  the  operation  of  the  sta- 
ni!'   I  ■>  in  ut  acknowledgment  or  part  payment,  is  in  the 

nature  of  an  action  on  the  old  demand,  and  not  on  thenewpro- 
mise,  and  musl  be  brought  accordingly.  Carshore  v.  lluych,  6 
Barb.  6 


LIMITATION  OF  ACTIONS.  107 

§  37.    Action,  when  deemed  commenced. 

The  last  point  to  be  considered  is  as  to  when  an  action  is  or 
is  not  to  be  deemed  as  commenced,  for  the  purpose  of  taking  a 
demand  out  of  the  operation  of  the  different  limitations  pre- 
scribed as  above  stated. 

The  provision  of  the  Code  on  this  subject  is  as  follows : 

§  99.  An  action  is  commenced  as  to  each  defendant,  when  the  sum- 
mons is  served  on  him,  or  on  a  co-defendant,  who  is  a  joint  contractor, 
or  otherwise  united  in  interest  with  him. 

An  attempt  to  commence  an  action  is  deemed  equivalent  to  the'  com- 
mencement thereof,  within  the  meaning  of  this  title,  when  the  summons 
is  delivered,  with  the  intent  that  it  shall  be  actually  served,  to  the  sheriff 
or  other  officer  of  the  county,  in  which  the  defendants,  or  one  of  them, 
usually  or  last  resided ;  or,  if  a  corporation  be  defendant,  to  the  sheriff, 
or  other  officer,  of  the  county  in  which  such  corporation  was  established 
by  law,  or  where  its  general  business  was  transacted,  or  where  it  kept 
an  office  for  the  transaction  of  business.  But  such  an  attempt  must  be 
followed  by  the  first  publication  of  the  summons,  or  the  service  thereof, 
within  sixty  days. 

It  will  be  observed,  on  comparison  of  this  section  with  that  in 
the  Code  of  1848,  that,  now,  service  of  summons  on  any  one 
joint  contractor,  or  co-defendant  united  in  interest,  is  sufficient 
to  take  the  case  out  of  the  statute,  as  against  all  other  parties  in 
the  same  interest  with  the  parties  served,  which  formerly  was 
not  the  case.     See  Vandenburgh  v.  Biggs,  3  How.  316. 

On  the  other  hand,  the  provisions  of  the  former  Code  are  re- 
stricted by  its  being  now  rendered  imperatively  necessary  that 
service,  either  actual  or  by  publication,  must,  in  every  case,  fol- 
low the  delivery  of  process  to  the  sheriff,  within  sixty  days 
thereafter,  in  order  to  render  that  delivery  of  any  effect  what- 
ever. 

Actual  or  substituted  service  must  therefore,  in  all  cases,  be 
made  within  the  period  of  limitation,  or  within  sixty  days  after, 
at  the  very  latest ;  and,  in  the  latter  case,  the  summons  must  be 
actually  in  the  hands  of  the  sheriff  of  the  county  of  residence  or 
last  residence  of  the  defendants,  or  one  of  them,  or,  in  the  case 
of  a  corporation,  in  those  of  the  sheriff  of  the  county  in  which 
its  business  has  been  carried  on,  within  the  original  period  of 
limitation,  whatever  that  period  may  be.    It  is,  the  writer  feels, 


-[08  LIMITATION  OF  ACTIONS. 

superfluous  to  insist  at  any  length  upon  the  vital  importance  of 
this  rule  being  always  borne  in  mind,  and  always  acted  upon, 
within  the  time  allowed.  It  is  a  principle  so  clear  as  to  amount 
to  an  axiom. 

For  certain  purposes,  however,  the  action  may,  in  a  certain 
sense,  be  said  to  have  commenced,  from  the  allowance  of  a  pro- 
visional remedy,  on  which,  under  sec.  139,  the  court  is  also  to 
be  deemed  to  have  acquired  jurisdiction,  and  to  have  control 
of  all  subsequent  proceedings.  See  this  subject  subsequently 
considered,  and  cases  cited. 

The  allowance  of  such  a  remedy,  though  it  confers  jurisdiction 
as  above,  is  not  however,  in  strictness,  a  commencement  of  the 
action.     In  Re  Grisivold,  13  Barb.  412. 


PRELIMINARIES  TO  COMMENCEMENT  OF  ACTION.  1Q9 


BOOK    III. 

OF  THE   COMMENCEMENT  OF  AN  ACTION,  AND   THE 
PRELIMINARIES  THERETO  WHEN  NECESSARY. 


CHAPTER     I . 

OF  THE  PRELIMINARIES  TO  THE  COMMENCEMENT  OF  AN  ACTION 
IN  CERTAIN  CASES. 


§  38.   Various  Preliminaries. 

Infant  Plaintiffs.'] — Before  an  action  can  be  commenced  by, 
or  on  behalf  of  an  infant  plaintiff,  a  guardian  for  the  purposes 
of  the  suit  must  be  regularly  appointed.  If  the  summons  be 
previously  issued,  the  whole  proceeding  will  be  irregular,  and, 
on  application,  will  be  set  aside,  Hill  v.  Thacter,  3  How.  407,  2 
C.  E.  3 ;  where  the  appointment  of  the  guardian  ad  litem 
not  having  been  made  till  the  day  of  actual  service  of  the  sum- 
mons, and  one  day  after  its  date  and  that  of  the  verification  of 
the  complaint,  the  action  was  held  to  have  been  irregularly 
commenced.  The  proceedings  necessary  for  this  purpose,  and 
the  decisions  in  relation  thereto,  are  treated  of  in  a  separate 
chapter?  No.  IV.,  of  this  portion  of  the  work. 

Lunatics,  cfrc] — No  action  can  be  brought  by  the  committee 
of  an  idiot,  lunatic,  or  habitual  drunkard,  without  the  leave  of 
the  court  by  which  the  commission  was  issued,  previously 
obtained  for  that  purpose.  Such  leave  must  be  applied  for  on 
petition  stating  the  facts,  according  to  the  old  practice. 

Nor  can  an  action  be  brought  against  a  lunatic,  or  other  in- 
capacitated party  as  above,  judicially  declared  to  be  such, 
without  a  similar  application  being  first  made  to  the  court.    The 


HO  PRELIMINARIES  TO  COMMENCEMENT  OF  ACTION. 

provisions  as  to  service  of  summons  in  such  cases,  as  contained 
in  sec.  134,  make  no  difference;  they  do  not  authorize  the 
bringing  an  action  without  leave,  but  merely  regulate  the  mode 
of  service  in  that  action,  when  duly  brought  thereon.  The 
proper  course  of  the  creditor  in  such  cases,  "  is  to  petition  the 
court  for  relief,  and,  if  his  claim  is  undisputed,  the  committee 
will  be  ordered  to  pay  it ;  if  disputed,  so  as  to  bring  its  justice 
seriously  in  question,  a  reference  will  be  ordered,  or  the  plain- 
tiff will  be  permitted  to  bring  an  action  to  determine  its  justice 
and  extent."  Soverhill  v.  Dickson,  5  How.  109 ;  Hall  v.  Taylor, 
8  How.  428.  This  is  also  a  proceeding  in  which  the  forms  of 
the  old  practice  must  be  followed. 

Receivers.] — A  receiver  appointed  by  the  court  cannot,  in 
general,  bring  or  defend  a  suit,  without  its  consent.  Before 
doing  the  former,  he  must  apply  for  leave,  in  the  manner  before 
indicated,  with  respect  to  the  bringing  of  suits  by  committees 
under  similar  circumstances.  If  he  omit  to  do  so,  and  fail  in 
the  suit,  he  will  be  personally  liable  for  the  costs.  Phelps  v. 
Cole,  3  C.  E.  157.  This  is,  however,,  not  the  case  as  regards 
receivers  of  a  debtor's  estatex  appointed  in  the  course  of  sup- 
plemental proceedings,  after  judgment.  Sees.  298  and  299 
of  the  Code,  and  Eule  77  of  the  Supreme  Court.  The  au- 
thority of  a  receiver  of  this  class  to  sue,  is  general,  and  extends 
to  all  cases  in  which  he  is  not  restricted  by  the  special  order 
of  the  court.  The  only  point  in  which  his  discretion  in  this 
respect  is  limited,  is  with  respect  to  actions  brought  against 
insolvents,  from  whom  he  cannot  obtain  his  costs.  In  these 
cases  he  will  not  be  allowed  them,  unless,  before  bringing  such 
action,  he  obtain  the  authority  of  the  court,  or  the  consent  of 
all  persons  interested.     See  rule  77. 

,Y< ./  /  Priend.  |  —The  circumstances  under  which  a  party  labor- 
ing under  disability  must  appear  by  a  next  friend,  have  been 
adverted  to  in  a  former  chapter,  under  the  head  of  Parties. 
The  selection  must  of  course  be  made,  in  those  cases,  before 
I.  and  the  party  selected  must  be  of  ability  to 
answer  for  I  be  co  I    of  1  he  Buit. 

Suing  in  Form&Pauperis.]  -In  addition  to  legal  disabilities, 
a  party  may  labor  under  inability  to  sue  with  eifect,  occasioned 


SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION.         HI 

by  poverty.  For  this  case  provision  is  expressly  made  by  title 
I.  of  chap.  VIII.  part  III.  of  the  Revised  Statutes,  2  R.  S.  444, 445. 
A  party  in  this  position  must  apply  to  the  court  on  petition, 
verified  by  affidavit  in  the  form  there  expressly  prescribed, 
according  to  the  former  practice  in  such  cases.  If  the  court  be 
satisfied  with  the  facts  alleged,  counsel  and  attorneys  will  be 
assigned  to  him,  and  he  will  be  permitted  to  prosecute  his 
cause/without  being  liable  to  the  payment  of  any  fees,  or  of  the 
costs  of  the  suit.  The  privilege  thus  granted  is,  however, 
revocable  for  misconduct;  and  an  order  of  this  nature,  though 
generally  a  preliminary  to  suit  brought,  is,  it  would  seem  from 
sec.  2  of  the  title  before  cited,  obtainable  in  a  suit  then  actually 
existing.  As  a  general  rule,  however,  he  must  sue  as  such  ab 
initio,  or  the  application,  if  delayed,  may  be  denied.  Florence  v. 
BulJceley,  1  Duer,  705,  12  L.  0.  28. 

Actions  by  Attorney- General]— Under  sec.  430  of  the  Code, 
the  leave'  of  the  court  is  also  made  a  prerequisite  to  actions 
brought  by  the  Attorney-General,  for  vacating  the  charters,  or 
annulling  the  existence  of  corporations  other  than  municipal, 
under  the  peculiar  circumstances  there  specified. 


CHAPTER     II. 

OF  PROCEEDINGS  FOR  SETTLEMENT  OF  A  CONTROVERSY 
WITHOUT  ACTION  BROUGHT. 


General  Remarks. 

The  modes  of  accomplishing  this  object,  as  pointed  out  by 
the  Code,  are  twofold.  1st.  The  bringing  such  controversy 
to  a  final  decision,  upon  a  case,  without  going  through  the  forms 
of  an  action;  and  2d.  The  confession  of  judgment  in  respect 
thereof;  which  subjects  will  be  successively  treated.  Of  a 
somewhat  analagous  nature  to  the  former,  is  the  reference  of 
a  claim  to  arbitration  under  the  old  practice,  but  which  mode 
of  proceeding  is  in  nowise  affected  by  the  Code. 


112  SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION. 

§  39.    Submission  of  Controversy. 

The  submission  of  a  controversy  without  action  is  provided  for 
by  sees.  372  to  374  of  the  Code.  The  parties  are  thereby  em- 
powered to  agree  upon  a  case  containing  the  facts  upon  which 
such  controversy  depends,  and  to  present  a  submission  of  the 
same  to  any  court  which  would  have  jurisdiction  of  an  action 
when  brought ;  it  being  also  made  to  appear  by  affidavit,  that 
the  controversy  is  real,  and  the  proceeding  in  good  faith,  to 
determine  the  rights  in  question.  The  case  having  been  drawn, 
and  the  submission  signed  by  the  parties,  the  matter  is  then  to 
be  heard  at  the  general  Term,  on  printed  papers.  See  Eule  29 
of  the  Supreme  Court.  From  the  moment,  in  fact,  that  the  case 
and  submission  have  been  prepared  and  signed,  the  matter 
takes,  in  all  respects,  the  shape  of  an  appeal  to  the  general 
term,  from  the  decision  of  a  single  judge  upon  a  case.  The 
papers  must  be  printed  and  served,  points  prepared,  and  the 
whole  case  conducted  precisely  as  prescribed  in  relation  to  the 
latter.    'See  hereafter  under  the  head  of  Appeals. 

On  the  decision  of  the  court  on  the  matter  thus  brought  be- 
fore it  being  pronounced,  judgment  is  to  be  entered  thereon 
exactly  as  in  other  cases,  but  without  costs  for  any  proceedings 
prior  to  notice  of  trial.  The  judgment  roll  is  to  consist  of  the 
case,  the  submission,  and  a  copy  of  the  judgment,  sec.  373. 
When  entered,  such  judgment  may,  under  sec.  374,  be  en- 
forced, in  the  same  manner,  and  subject  to  the  same  right  of 
appeal,  as  if  it  had  been  entered  in  a  regular  action  at  that  par- 
ticular stage,  and  the  appeal  therefrom  lies  direct  to  the  Court  of 
Appeals,  without  the  intervention  of  any  intermediate  tribunal. 

These  provisions,  in  effect,  enable  parties  wishing  an  amica- 
ble settlement  of  a  controversy  between  them,  to  place  their 
case  precisely  on  the  same  footing  as  if,  after  having  gone 
through  all  the  regular  stages,  it  had  been  passed  upon  by  a 
single  judge,  and  an  appeal  taken  from  that  decision  to  the 
ml  term  ;  but  without  the  delay  and  expense  consequent 
on  the  ordinary  proceedings  for  that  purpose. 

In  //  "     ..  Foraythf  L4  Barb.  499,  this  course  of  proceeding 

adopted.     So  also  in   Van  Sickle  v.  Van  Sickle,  8  How.  265, 

where  it  j.    laid  down  that  this  remedy  is  only  appropriate  in 

no  action  has  been  brought.    The  action  which  had 

been  thi  re  commenced,  must,  it  was  held,  be  deemed  to  be 


SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION.         U3 

abandoned,  or  at  least  suspended,  and  the  case  considered  and 
determined  entirely  independent  of  it.  If  the  submission  of 
the  case  did  not  of  itself  work  a  discontinuance  of  the  action,  it 
must  do  so  when  followed  by  a  judgment,  and  must,  mean- 
while, suspend  it.  In  Lang  v.  Bopke,  1  Duer,  701, 10  L.  O.  70,  it 
was  held  that  the  provisions  of  the  Revised  Statutes  for  granting 
a  new  trial,  as  of  right,  in  ejectment  cases,  are  not  applicable  to  a 
judgment  rendered  on  a  submission  of  this  nature.  Such  a  pro- 
ceeding is  not  an  action  within  the  scope  of  those  provisions. 
The  submission  has  the  effect  of  passing  the  case  at  once  to  the 
general  term ;  nor  can  the  parties  be  released,  on  motion,  from 
the  legal  effect  of  their  submission,  so  as  to  enable  them  to  liti- 
gate before  a  jury  the  facts  upon  which  they  had  agreed. 

The  above  are  the  only  reported  cases  bearing  on  these  pro- 
visions. They  are,  in  fact,  of  a  nature  little  likely  to  give  rise 
to  controversy  as  to  their  form,  the  whole  proceeding  being  one 
of  an  amicable  nature,  and  only  adoptable  on  express  agree- 
ment of  the  parties.  For  the  same  reason,  this  course  of  action 
appears  incompatible,  with  reference  to  the  decision  of  a  contro- 
versy to  which  infants  or  other  persons  not  sui  juris  are  parties. 
The  very  essence  of  it  is  consent,  and  an  admission  of  all  the 
facts  out  of  which  that  controversy  arises,  which,  with  regard  to 
parties  so  situated  is  evidently  an  inadmissible  line  of  action. 
The  necessity  of  a  full  consideration  of  the  whole  matter  in  all 
its  possible  bearings,  before  this  course,  if  proposed,  is  finally 
assented,  to  is  evidenced  by  the  case  of  Lang  v.Ropke,  above  cited. 

§  40.   Confession  of  Judgment. 

The  other  mode  of  settlement,  above  noticed,  is  the  confes- 
sion of  a  judgment  without  action.  By  this  proceeding,  the  full 
benefits  of  an  action  are  secured  to  the  intended  plaintiff,  with- 
out the  corresponding  expense  to  the  defendant.  It  is,  there- 
fore, a  measure  of  frequent  occurrence,  where  the  latter  pos- 
sesses no  real  defence,  and  has  no  wish  to  evade  his  responsi- 
bility ;  or  where  an  arrangement  is  made  between  the  parties, 
for  security  in  respect  of  a  present,  or  indemnity  against  a 
future  indebtedness.  It  is  equivalent  to  the  cognovit  or  war- 
rant of  attorney,  under  the  old  practice,  and  in  the  English 
courts.  In  the  latter,  an  analogous  proceeding  is  of  frequent 
occurrence,  in  the  shape  of  an  order,  obtained  by  the  defendant, 
8 


114         SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION. 

for  the  plaintiff  to  show  cause  why,  on  a  stipulation  that  he  is 
to  be  at  liberty  to  enter  up  judgment  at  a  fixed'  date,  in  default 
of  payment  of  debt  and  costs  at  that  period,  all  interim  pro- 
ceedings should  not  be  stayed.  A  similar  proceeding  is  also 
adoptable  under  the  Code,  where  thought  expedient,  by  means 
of  an  offer  served  by  the  defendant  to  allow  the  plaintiff  to  take 
judgment  for  the  whole  amount  claimed  by  him,,  and  the  entry 
of  judgment  on  that  offer. 

The  main  part  of  the  provisions  of  the  Code  on  this  subject 
were  contained  in  the  measures  of  1848  and  1849- ;  but  the 
alterations  on  the  amendment  of  1851  are  important,  the  larger 
portion  of  sec.  384  being  new. 

This  proceeding  may  be  taken  for  the  purpose  of  securing  to 
the  confessee  any  amount,  either  due  qx  to  become  due,  or  to 
indemnify  him  against  any  contingent  liability ;  and  provision 
may  be  made  for  the  entry  of  the  judgment,  either  immediately.. 
or  at  any  future  specified  date.  The  mode  of  proceeding  is 
prescribed  by  sec.  383,  as  follows : 

§  383.  A  statement  in  writing  must  be  made,  signed  by  the  defend- 
ant, and  verified  by  his  oath,  to  the  following  effect : 

1.  It  must  state  the  amount  for  which  judgment  may  be  entered, 
and  authorize  the  entry  of  judgment  therefor. 

2.  If  it  be  for  money  due  or  to  become  due,  it  must  state  concisely 
the  facts  out  of  which  it  arose,  and  must  show  that  the  sum  confessed 
therefor  is  justly  due,  or  to  become  due. 

3.  If  it  be  for  the  purpose  of  securing  the  platiniff  against  a  contin- 
gent liability,  it  must  stale  concisely  the  facts  constituting  the  liability, 
and  must  show  that  the  sum  confessed  therefor  does  not  exceed  the 
same. 

In  the  Appendix,  a  form  is  given,  adapted  to  each  of  the 
above  contingencies.  Where  the  security  is  for  the  purposes 
of  indemnity  against  future  liabilities,  the  statements  of  fact 
must  necessarily  vary  according  to  the  peculiar  circumstances, 
great  thing  to  be  looked  to,  is  the  making  a  concise  and 
clear  exposition  of  the  actual  facts,  in  much  the  same  manner, 
and  governed  by  the  same  general  principles,  as  are  subsequently 
laid  down  in  reference  to  averments  of  fact  in  pleading. 

Bj  see.  884,  the  mode  of  entering  judgment  on  such  a  state- 
ment, and  of  enforcing  such  judgment,  when  entered,  are  pre- 
scribed in  terms.     This  brunch  of  the  subject  will  hereafter  be 


SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION.  H5 

considered,  under  the  heads  of  Judgment  and  Execution ;  the 
former  differing  very  slightly,  and  the  latter  in  no  respect,  except 
one,  from  the  usual  practice  in  such  cases.  The  peculiar  pro- 
vision alluded  to  is  of  recent  insertion,  and  is  to  the  effect,  that, 
where  a  confession  of  judgment  of  this  nature  shall  provide 
for  the  payment  of  a  sum  by  instalments,  execution  may  from 
time  to  time  be  issued  for  the  instalments  then  actually  due, 
without  prejudice  to  the  renewal  of  the  same  proceeding,  for  the 
recovery  of  any  subsequent  payments.  Sec.  384.  (See  here- 
after, under  the  head  of  Execution.) 

It  will  be  remembered  that,  in  cases  where  the  amount  con- 
fessed does  not  exceed  $250,  justices  of  the  peace  have  the 
power  to  enter  judgment  on  confession,  under  art.  VIII.  title 
IV.  c.  II.  part  III.  of  the  Eevised  Statutes ;  the  defendant  in 
such  cases  being,  however,  obliged  to  appear  before  the  justice 
in  person.  (See  former  chapter,  as  to  proceedings  in  these 
courts.) 

A  judgment  of  this  nature  cannot  be  confessed  by  a  joint 
debtor  so  as  to  bind  his  copartner.  Such  judgment  will  pro- 
bably be  valid  as  against  the  party  signing,  but  it  will  be  void 
as  against  the  other,  and  cannot  be  enforced  against  the  joint 
property.  Stoutenburgh  v.  Vandenburgh,  7  How.  229.  An  offer 
under  the  Code  seems,  however,  to  stand  on  a  different  footing, 
and  in  the  place  of  a  cognovit  under  the  Eevised  Statutes,  and 
the  judgment  under  it  will  be  enforceable  against  joint  pro- 
perty.     Emery  v.  Redfield,  9  How.  130. 

A  public  officer,  sued  for  services  rendered  to  the  public,  may 
confess  judgment  in  his  official  capacity ;  but  the  supervisors  of 
the  county  will  not  be  concluded,  and  may  go  behind  it  and 
inquire  whether  the  whole  or  part  of  the  cause  of  action  was  a 
county  charge.     Gere  v.  Supervisors  of  Cayuga,  7  How.  255. 

A  confession  of  judgment  will,  it  seems,  be  good,  though 
made  to  a  substituted  party,  if  the  transaction  be  otherwise 
bona  fide.     Paton  v.  Westervelt,  12  L.  0.  7. 

In  /Schoolcraft  v.  Thompson,  9  How.  61,  a  general  statement 
that  the  debt  for  which  judgment  was  confessed,  arose  in  respect 
of  goods  purchased  of  parties  and  at  times  specified,  was  held 
to  be  such  a  concise  statement  of  the  facts  out  of  which  the  debt 
arose,  as  fully  to  meet  the  requirements  of  the  statute.  By  this 
decision,  that  made  in  the  same  case  to  the  contrary  effect,  and 
reported  7  How.  446,  is  reversed. 


116         SETTLEMENT  OF  CONTROVERSY  WITHOUT  ACTION. 

In  Plummer  v.  Plummer,  7  How.  62,  a  strict  view  was  taken, 
and  it  was  held  that  it  was  not  sufficient  to  state  that  the  debt 
jn  question  arose  on  a  promissory  note,  without  stating  also  the 
consideration  given  for  it.  In  Mann  v.  Brooks,  however,  7  How. 
449,  this  decision  was  not  concurred  in,  and  it  was  considered 
that  a  statement  that  the  debt  was  due  on  a  promissory  note, 
describing  it,  was  a  sufficient  specification  to  bring  the  case  within 
the  terms  of  the  statute ;  and  this  latter  decision  has  since  been 
affirmed  at  General  Term.     See  Mann  v.  Brooks,  8  How.  40. 

In  Post  v.  Coleman,  9  How.  64,  a  statement  that  the  defendant 
gave  his  promissory  note  there  described,  for  coal  purchased  of 
the  plaintiff  for  the  use  of  the  defendant's  house,  was  held  to 
be  a  sufficient  statement,  and  that  the  defendant's  declaration 
that  the  debt  was  justly  due,  made  it  legally  due,  though,  by  the 
terms  of  the  note,  the  credit  had  not  expired.  The  debt  became 
merged  in  the  judgment.  It  was  likewise  held  that  the  defend- 
ant's signature  to  the  verification  following  the  statement,  instead 
of  to  the  statement  itself,  was  a  sufficient  compliance  with  the 
statute ;  and,  likewise,  that  the  verification  before  one  of  the 
plaintiff's  attorneys  was  no  objection  to  the  regularity  of  the 
judgment.  The  Rule  in  that  respect  does  not  apply  to  affidavits 
preparatory  to  the  commencement  of  a  suit.  There  is  then  no 
suit  pending. 

A  confession  of  judgment,  under  the  Code,  cannot  be  made 
in  an  action  arising  out  of  tort.  The  proceeding  is  only  author- 
ized in  respect  of  money  due  or  to  become  due,  or  for  security 
against  a  contingent  liability.  These  are  the  only  cases  affected 
by  the  Code.     Boutel  v.  Owens,  2  Sandf.  655;  2  C.  R.  40. 

It  would  seem,  by  the  same  case,  as  if  these  provisions  were 
not  applicable  to  the  case  of  confession  of  judgment,  in  a  suit 
already  commenced,  though  this  is  doubtful.  It  is,  however, 
te  clear,  that,  where  such  confession  takes  place  whilst  the 
party  is  actually  in  custody,  and  without  the  presence  of  an 
attorney  or  counsel  to  advise  him  in  the  matter,  the  judgment 
entered  on  it  will  be  void.  Same  case.  (See  also  Wilder  v. 
r,iiiin  tunc/:,  '•'>  How.  81.)  This  is  in  accordance  with  the  rigid 
rules  and  practice  of  the  English  courts,  under  similar  circum- 
stances. 

jiy  sec  884,  the  judgment  to  be  entered  on  a  confession  of 
this   nature   must   be  endorsed    upon   the  statement,   and  also 
entered  in  the  judgment*book.     It  will  be  most  essential  that 
'  these  rules  be  literally  complied  with  on  all  occasions. 


SUMMONS,  AND  ITS  SERVICE.  H7 

These  provisions,  however  imperative,  are  nevertheless  direct- 
ory in  their  nature,  and  therefore  the  court  will  not  allow  an 
innocent  party  to  suffer,  from  a  mistake  or  omission  of  one  of 
its  officers  in  this  respect.     Neele  v.  JBerryhill,  4  How.  16. 

The  same  principle,  as  to  these  provisions  being  merely  direct- 
ory, is  also  fully  sustained  in  Park  v.  Church,  5  How.  381 ;  1 
C.  E.  (N.  S.)  47.  It  was  there  held  that,  where  the  defendants 
had  confessed  judgment  "for  a  certain  amount,  but  omitted  in 
direct  terms  to  authorize  its  entry,"  the  judgment  could  not  be 
set  aside  for  irregularity,  the  words  omitted  being  merely  direct- 
ory, and  the  authority  being  to  be  implied  from  the  confession 
itself.  It  was  also  held  that  the  defendant  could  not  even  be 
heard  to  object,  after  the  lapse  of  a  year,  which  had  occurred, 
which  lapse,  of  itself,  barred  all  relief  for  irregularity.  2  E.  S. 
282,  sec.  2.  In  the  same  case,  a  liberal  construction  was  put 
upon  a  stipulation  binding  the  plaintiff  not  to  issue  execution 
for  a  limited  period,  unless,  upon  actual  examination  of  the 
books,  &c.,  of  the  defendants,  "he  should  have  good  reason  to 
believe  himself  insecure."  The  court  refused  to  set  aside  the 
execution,  though  the  plaintiffs  had  not  actually  examined  the 
books,  it  appearing  clear,  from  other  circumstances,  that  he  had 
such  good  reason. 


CHAPTER     III. 

OF    SUMMONS,    AND    ITS     SERVICE. 

Preliminary  Remarks.] — The  proceedings  preliminary  to  the 
bringing  of  an  action  in  the  regular  form  having  thus  been  con- 
sidered, we  now  arrive,  in  due  course,  at  the  primary  proceeding 
in  such  action  when  brought,  i.  e.,  the  issuing  and  service  of  the 
summons  by  which  it  is  originally  commenced.  This  process  is 
indispensable  for  the  due  bringing  of  an  action  in  all  cases,  al- 
though, for  certain  purposes,  the  action,  as  hereafter  noticed,  may 
be  held  to  be  commenced  before  its  actual  service. 

In  one  case,  and  one  only,  the  issuing  of  a  summons  will  not 
only  be  unnecessary,  but  unadvisable,  and  that  is  with  reference 
to  moneys  collected  by  an  attorney  and  not  paid  over  on  demand, 


118  SUMMONS,  AND  ITS  SERVICE. 

in  respect  of  "which  an  attachment  is  issuable  under  the  Eevised 
Statutes.  If,  instead  of  issuing  such  attachment,  the  client  bring 
an  action  in  the  ordinary  course,  the  right  to  the  former  remedy 
will  be  held  to  have  been  waived,  and  it  cannot  be  afterwards 
obtained.    Cottrell  v.  Finlayson,  4  How.  242. 

§  41.   Summons,  Nature  and  Form  of. 

The  nature  and  form  of  summons  are  thus  indicated  by  the 
Code:— 

§  128.  The  summons  shall  be  subscribed  by  the  plaintiff,  or  his  at- 
torney, and  directed  to  the  defendant,  and  shall  require  him  to  answer 
the  complaint,  and  serve  a  copy  of  his  answer  on  the  person  whose 
name  is  subscribed  to  the  summons,  at  a  place  within  the  State,  to  be 
therein  specified,  in  which  there  is  a  post-office,  within  twenty  days  after 
the  service  of  the  summons,  exclusive  of  the  day  of  service. 

§  129.  The  plaintiff  shall  also  insert  in  the  summons  a  notice,  in  sub- 
stance as  follows : 

1.  In  an  action,  arising  on  contract  for  the  recovery  of  money  only, 
that  he  will  take  judgment  for  a  sum  specified  therein,  if  the  defendant 
fail  to  answer  the  complaint  in  twenty  days  after  the  service  of  the  sum- 
mons. 

2.  In  other  actions,  that  if  the  defendant  shall  fail  to  answer  the 
complaint,  within  twenty  days  after  service  of  the  summons,  the  plain- 
tiff will  apply  to  the  court  for  the  relief  demanded  in  the  complaint. 

Indispensable  Requisites^] — It  will  be  seen  from  these  provi- 
sions, that  the  following  are  indispensable  requisites  to  the  regu- 
larity of  this  important  process: 

1.  That  the  summons  should  be  subscribed  by  the  plain  tiff  or 
his  attorney. 

2.  That  it  should  be  directed  to  the  defendant. 

3.  That  he  should  be  formally  required  thereby  to  answer  the 
complaint  in  the  action. 

4.  That  the  place  where  his  answer  is  to  be  served  should  be 
distinctly  specified. 

5.  That  tin;  time  within  which  such  service  should  be  made 
shouM  all  o  be  distinctly  pointed  out. 

6.  That  lie  should  be  distinctly  warned  that,  in  the  event  of 
his  not  answering,  judgment  will  be  taken  against  him. 

7.  That  the  nature  of  the  judgment  to  be  so  taken  should  be 
distinctly  and  unmistakably  indicated. 


SUMMONS,  AND  ITS  SERVICE.  ;Q9 

With  reference  to  the  last  of  these  requisites,  the  process  in 
question  may  also  be  classified  into  two  separate  branches,  i.  e., 
1,  summons  for  payment  of  a  money  demand,  and,  2,  summons 
for  relief;  the  first  embracing  all  actions  arising  on  contract,  in 
which  a  fixed  and  specified  amount  is  sought  to  be  recovered; 
and  the  second,  all  those  of  which  a  contract,  either  express  or 
implied,  does  not  form  the  basis ;  where  unliquidated  damages 
are  claimed ;  or,  where  the  relief  demanded  consists  in  the  per- 
formance of  some  act,  or  is  otherwise  of  such  a  nature  that  it 
cannot  be  represented  by  a  fixed  and  specific  money  payment. 
See  form,  in  Appendix,  adapted  to  both  cases.  The  plaintiff 
having,  under  sec.  130,  the  option  as  to  whether  he  will  or  will 
not  serve  a  copy  of  the  complaint,  to  accompany  the  summons 
in  the  first  instance,  the  form  in  question  is  also  adapted  to  meet 
this  contingency. 

Reference  to  Complaint.'] — In  case  the  complaint  is  not  served, 
it  is  requisite,  under  the  provisions  of  that  section,  that  the 
summons  should  state  where  it  is  or  will  be  filed.  In  ordinary 
cases,  a  statement  to  the  latter  effect  will  be  sufficient,  but, 
where  service  is  made  by  publication,  the  previous  filing  of 
the  complaint  is  made  a  condition  precedent  by  the  terms  of  sec. 
135 ;  where,  too,  the  title  to  real  property  is  in  any  manner  in 
question  in  the  cause,  the  filing  of  the  complaint  in  the  first 
instance,  is  also  an  advisable  preliminary  under  sec.  132. 

It  will  be  observed  that,  in  each  of  these  forms,  the  name  of 
the  court,  and  also  the  title  of  the  cause,  are  inserted  in  full.  It 
is  true  that,  by  the  above  provisions  of  the  Code,  these  precau- 
tions are  not  specially  required,  but  neither  of  them  can  be  safely 
omitted  in  any  case,  and  above  all,  in  those  where  the  summons 
is  served  by  itself,  without  a  copy  of  the  complaint.  The  omis- 
sion of  the  name  of  the  court,  in  particular,  will  be  a  fatal  ob- 
jection. The  weight  of  authority  on  this  subject  is  conclusive. 
In  Ward  v.  tStringham,  1  C.  R.  118,  a  summons  and  copy  com- 
plaint, so  served,  were  held  to  be  a  nullity,  and  leave  to  amend 
was  refused.  In  an  anonymous  case,  2  C.  E-.  75,  a  judgment 
entered  upon  a  summons  so  issued,  the  complaint  not  being 
served,  was  also  set  aside.  In  Dix  v.  Palmer,  5  How.  233;  3 
C.  R.  214,  the  omission  in  question  was  held  to  be  "a  fatal"  ob- 
jection," (though  capable  of  being  waived  by  subsequent  acqui- 
escence;) and  in  James  v.  Kirkpatrick,  5  How.  241,   3  C.  R. 


120  SUMMONS,  AND  ITS  SERVICE. 

174,  the  same  view  was  sustained,  and  a  judgment,  entered  on 
such  a  summons,  set  aside  as  irregular,  leave  to  amend  being 
only  granted,  on  terms  equivalent  to  the.  bringing  of  a  fresh 
action.  Nor  is  Walker  v.  Hubbard,  4  How.  154,  an  authority 
to  the  contrary,  for,  in  that  case,  although  leave  was  given  to 
amend,  when  no  court  was  named  in  the  summons,  still  the  name 
"Sup.  Court"  was  inserted  in  the  complaint  itself,  (that  abbrevia- 
tion conveying  a  definite  idea,  the  case  being  at  Albany  and  not 
in  New  York,  where  it  might  have  given  rise  to  a  confusion  of 
terms,)  and  such  leave  was  only  granted  upon  terms  which 
showed  that  the  court  considered  the  summons  and  complaint, 
as  they  then  stood,  to  be  bad  altogether,  until  such  amendment 
had  been  made. 

In  the  recent  case  of  Yates  v.  Blodgett,  however,  8  How.  278, 
the  above  decisions  are  reviewed  and  in  part  dissented  from. 
The  summons  in  that  case  did  not  give  the  name  of  the  court, 
but  it  appeared  correctly  upon  the  complaint  which  was  served 
with  it,  under  which  circumstances,  the  court  held  that  the  latter 
indication  was  sufficient,  and  refused  to  set  aside  the  summons, 
though,  if  served  alone,  it  would  have  been  insufficient. 

If  the  plaintiff  sue  in  any  special  capacity,  the  complaint  must 
conform  to  the  summons,  and  cannot  be  made  in  general  terms, 
or  the  proceedings  will  be  set  aside  as  irregular,  Blanchard  v. 
Strait,  8  How.  83. 

Foregoing  Requisites  considered.  1.  Subscription.] — The  follow- 
ing cases  have  been  decided,  with  reference  to  the  different  requi- 
sites to  a  valid  summons  as  above  laid  down. 

1st,  as  to  subscription. 

The  subscription  of  an  agent  of  the  plaintiff,  not  an  attorney, 
is  bad,  and  a  summons  so  subscribed  will  be  set  aside.  Weare 
or  Weir  v.  Slocitm,  3  How.  397;  1  C.  R.  105. 

Besides  subscribing  his  name,  and  indicating  a  place  where 
the  answer  may  be  served,  the  attorney,  or  party  so  subscrib- 
ing, must  also  add  his  place  of  residence,  or,  if  he  omit  to  do  so, 
any  subsequent  papers  in  the  suit  may  be  served  on  him  by 
mail.     Bale  5  of  Supreme  Court. 

2.  Direction  ><>  Defendant.  3.  Requisition  to  Answer.'] — On  the 
second  and  third  requisites,  viz.,  the  direction  to  the  defendant, 
and  the  formal  requisition  to  answer  the  complaint,  no  question 


SUMMONS,  AND  ITS  SERVICE.  121 

appears  as  yet  to  have  arisen.  Under  sec.  176,  the  suit  may  be 
commenced,  and  the  summons  served,  in  a  fictitious  name,  when 
the  real  one  of  the  defendant  is  unknown,  being  afterwards 
amended  on  its  discovery.  See  Pindar  v.  Black,  4  How.  95.  It 
is  not,  however,  allowable  to  the  plaintiff  to  use  a  fictitious  name 
at  his  discretion  ;  but  only  when  he  is  ignorant  of  the  true  one. 
Some  description  must  also  be  given,  so  as  to  identify  the  party 
intended  as  far  as  possible ;  and  the  facts  of  the  use  of  a  ficti- 
tious name,  and  of  the  plaintiff's  ignorance  of  the  true  one,  must 
likewise  appear  on  the  subsequent  proceedings.  Crandall  v. 
Beach,  7  How.  271. 

4.  Place  of  Service  of  Answer.] — With  reference  to  the  fourth 
requisite,  the  above-cited  case  of  Weare  v.  Slocum  is  also  author- 
ity, that  the  summons,  to  be  regular,  must  require  the  copy 
answer  to  be  served  upon  the  actual  subscriber,  whoever  that 
subscriber  may  be.  In  that  case,  the  summons,  subscribed  by 
the  agent. in  the  name  of  the  plaintiff,  required  the  answer  to  be 
served  on  "we,"  meaning  the  plaintiff,  at  a  certain  place  therein 
specified,  such  place  being,  not  the  plaintiff's  residence,  but  that 
of  the  agent  who  subscribed  in  his  name ;  and  this  direction  was 
held  to  be  clearly  bad,  on  the  grounds  above  stated,  though, 
under  the  peculiar  circumstances  of  the  case,  the  statute  of  limi- 
tations having  run  out  in  the  interim,  leave  was  given  to  amend 
on  terms  imposed. 

5.  Time  of  Service.'] — The  fifth  requisite,  i.  e.,  that  of  the  time 
within  which  the  answer  must  be  served,  will  be  considered  in 
its  details  hereafter.  There  can  be  no  question  but  that  a  full 
compliance  with  this  direction  of  the  statute  is  an  indispensable 
prerequisite  to  the  regu  larity  of  process,  and  would  be  so  held, 
though,  as  yet,  the  point  does  not  seem  to  have  been  made  the 
subject  of  express  decision. 

6.  Notice  of  talcing  Judgment.) — The  sixth  requisite,  i.  e.,  the 
formal  notice  that  j  udgmCnt  will  be  taken  in  default  of  answer, 
seems  also,  as  yet,  to  have  awakened  no  question,  doubtless  in 
consequence  of  its  having  been  complied  with  in  all  instances. 

7.  Demand  of  Judgment  or  Relief] — On  the  seventh  and  last 
requisite,  however,  i.  e.,  the  terms  of  that  notice,  more  question 
has  arisen,  and  the  distinction  between  the  two  different  forms 


122  SUMMONS,  AND  ITS  SERVICE. 

of  summons,  ?".  e.,  the  summons  for  money,  and  the  summons 
for  relief,  is  one  most  necessary  to  be  observed. 

A  summons  for  relief  has  been  held  to  be  bad,  in  an  action 
for  goods  sold  and  delivered,  and  judgment  was  denied,  on  the 
ground  that  the  contract  was  one  for  the  recovery  of  money 
only,  and  should  have  been  sued  upon  as  such.  Diblee  v.  Ma- 
son, 1  C.  R  37;  6L.  0.  363. 

The  converse  of  this  proposition  was  maintained  in  WyantY. 
Reeves,  1  C.  E.  49,  where  a  summons  for  money  was  held  to  be 
bad,  the  complaint  merely  praying  for  a  foreclosure  in  the 
usual  form. 

In  Leopold  v.  Poppenheimer,  1  C.  E.  39,  and  Williams  v.  Miller, 
2  C.  B,  55 ;  4  How.  94,  it  was  ruled  that  an  action  for  damages 
for  breach  of  promise  of  marriage,  was,  although  the  damages 
were  unliquidated,  an  action  "  arising  on  contract  for  the  recovery 
of  money  only,"  and  that,  as  such,  the  summons  was  properly 
issued  in  the  form  of  a  summons  for  money. 

The  authority  of  Williams  v.  Miller  is  also  confirmed  by  Trapp 
v.  The  N.  Y.  &  Erie  Railroad  Company,  6  How.  237 ;  where  it 
was  held  that  an  action  for  damages  in  respect  of  breach  of  con- 
tract, was  an  action  for  the  recovery  of  money  only,  and  as  such, 
fell  within  subdivision  1. 

In  Flynn  v.  The  Hudson  River  Railroad  Company,  however, 
below  cited,  the  learned  Judge  who  decided  Williams  v.  Millar, 
stated  that  he  had  never  felt  satisfied  with  that  decision ;  and 
that,  although  that  case  and  Leopold  v.  Poppenheimer  seemed  too 
clearly  within  the  language  of  the  first  subdivision  to  allow  an 
escape,  yet  he  should  not  regret  to  see  them  reexamined  and 
disapproved.  "The  rule  ought  to  be,  that,  when  the  action  is 
brought  for  the  recovery  of  a  money  demand  or  a  sum  certain, 
judgment  maybe  perfected  without  application  to  the  court,  but 
in  all  ot  In  t  cases  such  application  should  be  required;"  and  this 
DM  the  sounder  principle,  as  claims  of  this  kind  are,  in  their 
.  nature,  claims  for  unliquidated  damages,  although  a  cer- 
tain maximum  is  originally  fixed  in  the  summons:  and  they 
OOght  properly,  as  such,  to  be  made  the  subject  of  an  assess- 
ment in  the  ordinary  form,  on  a  recovery,  of  whatever  nature. 

The  view-  last  announced  seem  in  fact  to  have  prevailed,  as 
appears  from  the  followin 

In  Cfor  v.  M'tllnnj,  1  C.  E.  120,  it  was  held  that  an  action  for 
damages  against  a  common  carrier  in  respect  of  the  loss  of  goods, 


SUMMONS,  AND  ITS  SERVICE.  123 

fell  properly  under  the  division  of  actions  for  relief,  the  learned 
Judge  considering  that,  though  within  the  letter,  a  suit  of  that 
nature  was  not  within  the  spirit  of  subdivision  1 ;  and  that  this 
last  provision  was  only  intended  to  apply  to  actions  upon  con- 
tracts for  the  payment  of  money  upon  their  face,  and  not  to 
those  in  which  an  unliquidated  amount  of  damages  is  claimed. 

In  Flynn  v.  The  Hudson  River  Railroad  Company,  6  How.  308, 
10  L.  0.  158,  these  views  are  confirmed,  and  the  foregoing  case 
concurred  in,  in  terms,  by  the  same  learned  judge  who  decided 
Williams  v.  Miller,  as  before  noticed.  A  j  udgment  entered  up 
against  a  common  carrier,  for  the  amount  mentioned  in  the  sum- 
mons, without  application  to  the  court,  was  there  held  to  be 
irregular,  and  an  amendment  of  the  summons  was  ordered,  so 
as  to  bring  the  case  within  the  second  subdivision  instead  of 
the  first.  The  decision  proceeds  upon  the  ground  that,  although 
in  form  an  action  ex  contractu,  the  case  in  question  was  in  fact  an 
action  ex  delicto  ;  and  McDuffie  v.  Beddoe,  7  Hill,  578,  is  cited  in 
support  of  this  view.  See  also  Hasten  v.  Scovill,  6  How.  315, 
and  Hewitt  v.  Howell,  8  How.  346. 

In  Webb  v.  Mott,  6  How.  439,  similar  views  were  entertained,  t 
and  a  summons  under  subdivision  1,  the  complaint  being  for 
damages  for  a  malicious  prosecution,  was  held  to  be  bad,  although, 
the  defendant  having  appeared  generally,  the  objection  was 
considered  waived.  See  also  Hewitt  v.  Howell,  8  How.  346,  and 
other  cases  given  below,  deciding  in  like  manner. 

The  foregoing  principles  were  greatly  extended  in  Field  v. 
Morse,  7  How.  12,  where,  although  the  action  would  otherwise  have 
fallen  under  subdivision  1,  allegations  of  fraud  were  inserted.  It 
was  held  that,  under  these  circumstances,  the  summons  was  bad, 
the  gravamen  of  the  action  being  fraud,  and  a  judgment  which 
had  been  taken  by  default  was  set  aside.  In  West  v.  Brewster, 
1  Duer.  647,  11  L.  O.  157,  it  was  held  in  like  manner,  that  an 
action  against  an  attorney  for  moneys  collected  by  him,  was  an 
action  for  relief,  and  the  summons  properly  issued  under  subdi- 
vision 2. 

In  Voorhies  v.  Scojield,  7  How.  51,  similar  views  were  enter- 
tained, and  a  money  summons,  the  complaint  being  for  wrong- 
fully taking  personal  property,  was  held  to  be  irregular. 

Where,  too,  collateral  relief  seeking  to  vacate  an  agreement  for 
extending  the  time  of  payment,  was  prayed  for  in  an  ordinary 


124  SUMMONS,  AND  ITS  SERVICE. 

action  on  contract,  a  summons  for  relief  under  subdivision  2 
was  sustained.     Travis  v.  Tobias,  7  How.  90. 

In  The  Cemetery  Board  of  Hyde  Park  v.  Teller,  8  How.  504,  it 
was  held,  in  like  manner,  that,  where  the  action  is  for  unliquidated 
damages,  summons  for  relief  is  the  proper  form ;  where,  how- 
ever, the  contract  sued  upon  provides  in  terms,  for  the  payment 
of  a  fixed  sum,  as  liquidated  damages,  the  reverse  is  the  case, 
and  a  summons  for  that  amount  will  be  properly  issued  under 
subdivision  1. 

One  general  principle  may  be  safely  deduced  from  the  various 
decisions  last  cited,  and  particularly  from  Webb  v.  Mott,  Field  v. 
Morse,  Voorhies  v.  Scojield,  and  Travis  v.  Tobias,  in  all  of  which 
it  is  more  or  less  distinctly  laid  down,  viz:  that  the  statement  of 
the  cause  of  action  in  the  complaint,  and  the  incidents  to  that 
statement,  will,  in  all  cases,  be  held  to  control  the  summons ;  and 
that  the  latter  process  must  be  adapted  to  that  statement,  and  to 
the  relief  prayed  for,  whether  direct  or  collateral.  Another 
general  principle  seems  also  deducible  from  the  same  series  of 
decisions,  viz:  that  where  there  is  any  doubt  as  to  whether  the 
action  does  or  does  not  embrace  more  than  a  mere  money  reco- 
very, or  where  the  allegations  in  that  action  sound  anywise  in 
tort,  or  tend  towards  making  the  defendant  arrestable  on  execu- 
tion, a  summons  for  relief  will  be  the  more  advisable  form  of 
process. 

General  Remarks.]— Swift  v.  Be  Witt,  3  How.  280, 1 C.  E.  25,  6 
L.  0.  314,  is  direct  authority  as  to  legality  of  the  form  usually 
adopted  under  subdivision  1,  i.  e.,  that  the  plaintiffs  will  take 
judgment  for  the  amount  claimed,  and  also  for  interest  thereon 
from  a  given  date  mentioned  in  that  notice. 

The  case  of  Hill  v.  Thacter,  3  How.  407,  2  C.  K.  3,  before 
cited  under  the  last  head,  evidences  the  necessity  of  the  preli- 
minary proceedings,  necessary  to  authorize  the  commencement 
of  a  suit  in  the  name  of  an  infant  plaintiff,  being  perfected  be- 
fore the  summons  is  issued. 

I><  In  I  mul  .1  in'  udments.'] — Defects  in  a  summons  can  neither 
be  disregarded  under  see.  169,  nor  amended,  as  of  course,  but 
only  on  special  application  to  the  court  under  sec.  173.  See,  on 
the  former  point,  Uiblee  \.  Mason,  above  cited,  and,  on  the  latter, 
McCranev.  Moulton,  '6  Saudi'.  736;  1 C. K. (N. S.)  157.  Davenport 


SUMMONS,  AND  ITS  SERVICE.  125 

v.  Russell,  2  C.  E.  82,  is  a  decision  to  the  contrary  effect,  but 
seems  of  no  authority. 

The  above  cases  were  decided  under  the  Code  of  1849,  under 
which  process  was  not,  in  express  terms,  made  amendable.  Any 
possible  difficulty  on  the  question  is,  however,  now  removed  by 
the  last  amendment,  by  the  express  insertion  of  the  word  "pro- 
cess" in  that  section. 

Although,  in  several  of  the  cases  above  referred  to,  leave  to 
amend  the  summons  was  refused,  and  the  universal  practice  of 
the  courts  seems  to  be  to  insist  upon  a  strict  compliance  with  the 
form  prescribed;  and,  in  ordinary  cases,  where  the  defect  is  a 
defect  in  substance,  only  to  grant  that  leave  on  terms  equivalent 
to  the  bringing  of  a  fresh  action,  and  even,  in  some  few  instances, 
to  refuse  it;  the  same  strictness  has  not  always  been  shown 
where  the  defects  have  been  of  a  more  technical  nature,  and  not 
calculated  practically  to  mislead  the  defendant.  Thus,  in  Hart 
v.  Kremer,  2  C.  R.  50,  where  the  summons  stated,  not  that  the 
complaint,  but  that  "a  copy  of  the  complaint"  would  be  filed, 
the  court  held  that  there  was  nothing  in  the  objection;  and  in 
Keeler  v.  Belts,  3  C.  R.  188,  a  summons  which  referred  to  the 
complaint  as  "annexed,"  when  such  in  fact  was  not  the  case, 
was,  though  held  to  be  bad,  allowed  to  be  amended  on  payment 
of  costs.  Where,  too,  the  statute  would  run  unless  an  amendment 
be  granted,  the  court  will  permit  one,  where  otherwise  it  would 
have  been  refused.  See  the  same  case,  and  also  that  of  Weare 
v.  Slocuni,  above  cited.  Where  the  application  for  the  above 
purpose  is  made  after  the  defendant  has  appeared,  it  can  only 
be  made  upon  notice.     Hewitt  v.  Howell,  8  How.  3-46. 

Before  the  making  of  Rule  86  of  the  Supreme  Court,  it  was 
held  that,  in  a  summons  for  relief,  the  county  in  which  applica- 
tion would  be  made  for  judgment,  was  necessary  to  be  stated, 
and  that  such  county  must  be  that  designated  in  the  complaint 
as  the  place  of  trial.  Warner  v.  Kenny,  3  How.  323;  1  C.  R. 
96 ;  Anon.,  1  C.  R.  82.  Since  the  making  of  that  rule,  however, 
this  is  no  longer  necessary. 

§  42.   Service  of  Complaint,  with  Summons. 

It  is  left  optional  by  the  Code,  sec.  130,  as  to  whether  a  copy 
of  the  complaint  should  or  should  not  be  served  with  the  sum- 
mons; but,  in  a  majority  of  instances,  the  expediency  of  adopt- 


126  SUMMONS,  AND  ITS  SERVICE. 

ing  that  course  is  unquestionable ;  for  the  obvious  reason,  that 
a  defendant  desirous  of  delay  may  wait  till  the  very  last  day, 
before  he  demands  a  copy  of  the  complaint,  and,  by  then  serv- 
ing that  demand,  may  practically  gain  an  extension  of  his  time 
to  defend,  amounting  to  double  that  allowed  to  him,  when  the 
complaint  accompanies  the  summons. 

There  are,  however,  two  classes  of  cases  in  which  the  sum- 
mons may  advantageously  be  served  alone;  i.  e.,  1,  those  in 
which  an  immediate  commencement  of  the  action  is  an  object, 
or  in  which  it  is  likely  that  several  defendants  may  defend 
jointly;  and  2,  those  in  which  no  personal  claim  is  made  against 
any  one  or  more  of  the  defendants. 

§  43.  Notice  of  no  Personal  Claim. 

In  these  last  cases,  the  Code  has  made  provision  for  the  ser- 
vice of  a  notice  to  that  effect,  concurrent  with  the  summons,  the 
requisites  as  to  which  are  prescribed  by  sec.  131.  See  Appendix. 
Under  the  Code  of  1849,  the  plaintiff's  power  in  this  respect 
was  limited  to  cases  of  partition  or  foreclosure ;  but,  by  the  last 
amendment,  it  is  extended  to  causes  of  every  description,  with- 
out limitation,  and  may  now  be  advantageously  exercised,  with 
reference  to  every  mere  formal  defendant,  against  whom  no  per- 
sonal claim  is  made,  in  any  suit,  of  whatever  nature.  In  cases 
involving  a  claim  upon  specific  real  or  personal  property,  a  brief 
description  of  that  property  must  be  inserted.  See  form  as 
adapted  thereto.  The  benefits  of  adopting  this  course,  wherever 
practicable,  in  reference,  both  to  the  proceedings  at  the  outset, 
and  also  to  the  ultimate  award  of  costs  in  the  action,  in  the 
event  of  an  unreasonable  defence,  are  obvious  ;  and  therefore, 
wherever  possible,  it  should  never  be  omitted;  though,  of  course, 
it  cannot  be  done  with  reference  to  any  defendant  against  whom 
substantive  relief  is  sought,  and,  if  attempted  under  such  cir- 
cumstances,  would  render  the  proceedings  so  far  void,  ab  initio. 
It  would  seem  that,  where  husband  and  wife  are  mere  formal 
defendant  Bervice  of  notice  on  the  former  alone  would  be  held 
sufficient. 

§  44.    Service  of  Summons. 

The  essentials  ol  a  valid  summons,  and  of  the  accompanying 
notice,  in  cases  where  that  course  is  admissible,  having  thus 


SUMMONS,  AND  ITS  SERVICE.  127 

been  considered,  the  next  point  to  be  entered  upon  is  tliat  as  to 
their  due  service. 

In  courts  of  limited  authority,  tbe  mere  issuing  of  a  summons 
prima  facie  confers  jurisdiction  ;  and,  if  such  summons  be  served 
within  the  proper  limits,  the  presumption  will  be  that  it  was 
duly  issued.     Barnes  v.  Harris,  4  Comst.  374. 

In  Clason  v.  Corley,  5  Sandf.  454,  it  was  held  that  the  re- 
sidence of  a  defendant  within  the  circuit  of  a  judge  under  the 
former  equity  system,  was  of  itself  sufficient  to  give  that  judge 
jurisdiction  in  an  equity  suit,  though  neither  had  the  cause  of 
action  arisen,  nor  was  the  subject  in  controversy  within  that 
district. 

Persons  by  whom  Service  may  be  effected.] — Service  may  be  ef- 
fected either, 

1.  By  the  sheriff  of  the  county  where  the  defendant  may  be 
found,  or, 

2.  By  any  person  not  a  party  to  the  action :  and  the  party 
subscribing  the  summons  may,  if  thought  expedient,  fix  by  en- 
dorsement a  specified  time  for  its  service.     See  sec.  133. 

By  Sheriff.] — Van  Rensselaer  v.  Chadwick,  7  How.  297,  con- 
tains an  " obiter  dictum,'"  that  the  sheriff's  return  in  such  a  case  is 
not  conclusive,  but  may  be  impeached,  the  precise  point  how- 
ever notbeingin  question.  The  contrary  seems  nevertheless  to 
be  settled,  and  the  conclusiveness  of  the  sheriff's  return,  as  re- 
gards acts  duly  done  by  him  in  his  official  capacity,  clearly 
established  by  a  numerous  series  of  decisions,  and,  in  particular, 
by  the  cases  of  Learned  v.  Vandenburgh,  7  How.  379 ;  Van  Kirk 
v.  Wilds,  11  Barb.  520;  Russell  v.  Gray,  11  Barb.  541;  Col.  In- 
surance Co.  v.  Force,  8  How.  353 ;  Sheldon  v.  Paine,  Court  of 
Appeals,  30th  Dec,  1852.  The  sheriff's  certificate  must  how- 
ever identify  the  summons  and  complaint  as  that  served  by  him, 
or  the  service  will  be  defective.  Litchfield  v.  Bumcell,  5  How. 
341,  1  C.  K.  (1ST.  S.)  42,  9  L.  0.  182. 

It  seems,  though,  that  some  limit  should  be  imposed  on  this 
doctrine  in  extreme  cases,  such  as  that  reported,  4  How.  112, 
Anon.,  where  it  was  held  that  a  judgment  entered  upon  a  capias 
under  the  old  practice,  which  had  been  served  by  the  sheriff 
upon  a  wrong  person,  was  not  void  for  irregulari  ty ;  the  appli- 
cation to  set  such  judgment  aside  being  made  on  that  ground 


128  SUMMONS,  AND  ITS  SERVICE. 

alone,  without  any  affidavit  of  merits,  or  proof  of  collusion.  It 
seems  difficult  to  understand  on  what  ground  this  decision  pro- 
ceeded, or  how  any  proceeding  could  be  considered  regular,  in 
an  action  which,  as  between  the  real  parties  to  it,  had  never 
been  commenced  at  all.  In  both  the  cases  from  Wendell,  which 
are  cited  in  the  report,  the  causes  had  there  been  duly  com- 
menced in  the  first  instance,  and  the  irregularities  complained 
of  were  of  subsequent  occurrence,  during  their  progress,  and  on 
mere  points  of  form.  There  seems  a  wide  distinction  to  be 
drawn  between  cases  of  this  nature,  and  that  now  under  con- 
sideration. 

The  fact,  that  process  under  a  provisional  remedy  has  been 
placed  in  the  sheriff's  hands  for  execution,  does  not  render  it 
necessary  that  the  summons  should  be  served  by  him  also.  It 
is  equally  competent  for  another  party  to  serve  it,  in  this  as  in 
other  cases ;  and  that,  either  before  or  after  the  action  of  the 
sheriff  under  the  provisional  remedy,  provided  only  the  sum 
raons  has  been  previously  issued.  Mills  v.  Corbett,  8  How.  500. 

By  other  Persons.] — In  this  case  it  seems  clear  that  the  ordi- 
nary affidavit  by  the  person  employed  for  that  purpose  pos- 
sesses no  inherent  authority,  and  may  be  impeached  as  under 
other  circumstances,  on  the  facts  sworn  to  being  disproved.  See 
Van  Rensselaer  v.  Ohadivick,  7  How.  297,  before  cited,  which  is 
clearly  an  authority  to  this  effect. 

Mnde  of  Service.] — The  mode  of  service  of  such  summons,  by 
tlio  party  appointed  for  that  purpose,  is  thus  prescribed.  A 
copy  must  of  course  be  delivered  to  every  defendant  served. 
1  n  actions  on  contract,  however,  it  is  not  absolutely  impera- 
tive  that  service  should  be  made  on  all  the  defendants,  prior 
i"  ill'-  plaintiff  proceeding  against  those  on  whom  it  has  been 
effected.     Travis  v.  Tobias,  7  How.  90. 

i.  The  summons  shall  be  served  by  delivering  a  copy  thereof 
us  follows  : 

1.  If  the  suit  be  against  a  corporation,  to  the  president  or  other 
head  <>f  the  corporation,  secretary,  cashier,  treasurer,  a  director,  or 
managing  agent  thereof;  but  Buch  service  can  be  made  in  respect  to  a 
foreign  corporation,  only  when  it  lias  property  within  this  State,  or  the 
cause  of  notion  ftro  le  I  herein. 

2.  If  agrifost  a  minor  Cinder  the  age  of  fourteen  years,  to  such  minor 


SUMMONS,  AND  ITS  SERVICE.  129 

personally,  and  also  to  his  father,  mother  or  guardian,  or,  if  there  be 
none  within  the  State,  then  to  any  person  having  the  care  and  control 
of  such  minor,  or  with  whom  he  shall  reside,  or  in  whose  service  he 
shall  be  employed. 

3.  If  against  a  person  judicially  declared  to  be  of  unsound  mind,  or 
incapable  of  conducting  his  own  affairs  in  consequence  of  habitual 
drunkenness,  and  for  whom  a  committee  has  been  appointed  ;  to  such 
committee,  and  to  the  defendant  personally. 

4.  In  all  other  cases  to  the  defendant  personally. 

The  mere  manual  delivery  of  a  summons  and  complaint,  or 
of  either,  is  not  good  service,  unless  they  be  left  with  the  party 
served.  Beehman  v.  Cutler,  2  C.'E.  51.  It  is  absolutely  neces- 
sary that  this  precaution  should  be  observed,  in  case  of  any 
attempt  by  that  party  to  return  them.  The  courts,  too,  will 
not  sanction  any  false  statement  or  misrepresentation  with  a 
view  to  service  within  their  jurisdiction,  and,  if  that  imputation 
be  established,  the  service  so  made  will  be  set  aside.  Carpentev 
v.  Spoonen,  2  Sandf.  717 ;  2  C.  E.  140 ;  affirmed,  3  C.  E.  23. 

A  non-resident  witness,  who  has  voluntarily  come  within  the 
jurisdiction  of  the  court  for  the  express  purpose  of  being  examin- 
ed, is  privileged  from  the  service  of  process  during  his  attendance. 
He  has  the  same  privilege  as  a  witness  attending  under  sub- 
poena, and  that  privilege  extends  to  the  service  of  process  as 
well  as  to  exemption  from  arrest.  Seaver  v.  Robinson,  12  L.  0. 
120. 

Service  of  process  out  of  the  territorial  jurisdiction  of  the 
court  is,  ipso  facto,  a  nullity,  so  far  as  judicial  proceedings,  in 
personam,  are  concerned,  nor  can  the  defect  be  cured  by  any 
admission.  The  only  valid  mode  of  proceeding  in  such  cases 
is  by  publication  under  the  next  section.  Litchfield  v.  Burwell, 
5  How.  341 ;  9  L.  0.  182  ;  1  C.  E.  (N.  S.)  42.  See  also  the  case 
next  cited. 

Service  of  a  summons  on  the  president  of  a  foreign  corpora- 
tion, temporarily  within  the  State,  was  held  to  be  good  service 
under  the  Code  of  1849,  so  far  as  notice  ©f  the  commencement 
of  a  suit  was  concerned,  in  Hulbert  v.  The  Hope  Mutual  Insu- 
rance Company,  4  How.  275;  affirmed,  4  How.  415:  though  it 
was  held  as  above,  that,  so  far  as  regarded  a  judgment  in  per- 
sonam, such  service  was  ineffectual,  and  that  the  only  mode  of 
making  the  action  of  any  practical  effect  was  by  an  attachment. 
See  also  Nones  v.  The  Hope  Mutual  Insurance  Company,  8  Barb. 
9 


130  SUMMONS,  AND  ITS  SERVICE. 

541 ;  5  How.  96  ;  3  C.  R  161.  It  will  be  seen  that,  by  the  last 
amendment,  special  provision  is  made  for  service  of  this  nature, 
in  the  section  as  it  now  stands. 

The  same  view,  as  to  the  necessity  of  an  attachment  in  these 
cases,  was  taken  in  Brewster  v.  TJie  Michigan  Railroad  Company, 
5  How.  183;  3  C.  E.  215.  In  this  case,  it  was  held  that  service 
on  a  mere  local  agent  of  a  foreign  company  for  special  purposes 
only,  was  not  service  on  the  managing  agent  within  the  terms 
of  the  above  section. 

Service  upon  the  baggage-master  at  a  railroad  station  was 
held  to  be  insufficient,  in  an  action  against  the  company  for  loss 
of  baggage.  Flynn  v.  Tlie  Hudson  River  Railroad  Company,  6 
How.  308,  10  L.  0.  158.  He  was  held  not  to  be  a  managing 
agent,  within  the  terms  of  the  section.  "To  authorize  such  a 
service,  the  agent  must  have  the  same  general  supervision  and 
control  of  the  general  interests  of  the  corporation,  that  are 
usually  associated  with  the  office  of  cashier  and  secretary." 
The  irregularity  was  held,  however,  to  be  cured  by  the  subse- 
quent appearance  of  the  defendants. 

When  the  court  has  jurisdiction  of  the  action,  such  an  ap- 
pearance on  the  part  of  a  foreign  corporation  will  waive  all 
other  irregularities,  and  give  jurisdiction  of  the  person.  Wat- 
son v.  Cabot  Bank,  5  Sandf.  428  ;  see  s.  139. 

Service  on  the  secretary  of  a  corporation  was  held  to  be 
good,  but  service  on  individual  corporators  to  be  bad  service 
under  the  former  practice,  in  Lucas  v.  The  Trustees  of  the  Baptist 
Oh  arch  of  Geneva,  4  How.  353. 

Although,  by  subdivision  3,  a  special  mode  of  service  is 
prescribed  in  the  cases  of  lunatics,  &c,  yet  the  commencement 
of  an  action  against  a  party  judicially  declared  to  be  such,  will 
not  be  regular,  without  previous  application  to  the  court,  on 
petition  for  leave  for  that  purpose,  as  under  the  former  practice; 
and,  if  commenced,  the  proceedings  in  such  an  action  will  be 
restrained  until  such  leave  has  been  obtained.  Soverhill  v. 
Dick  on,  5  How.  109.  See  also  Hall  v.  Taylor,  8  How.  428; 
Wadsworih  v.  Sherman^  14  Barb.  169,  affirmed  by  the  Court 
Of  A-ppeals,  July  13th,  1853,  and  (Iriswold  v.  Miller,  lb  Barb. 
520,  before  cited. 

Service  on  a  lunatic  in  person  is  absolutely  indispensable  in 
all  cases,  whether  a  committee  has  been  appointed  or  not. 
Heller  v.  Better,  6  How.  191 ;   1  C.  R.  (N".  S.)  309. 


SUMMONS,  AND  ITS  SERVICE.  131 

§  45.  Substituted  Service  against  resident  Defendants,  in 
certain  cases. 

Additional  facilities  in  relation  to  the  service  of  process,  in 
cases  where  the  defendant  is  resident  within  the  State,  but 
cannot  be  found,  are  given  by  the  recent  measure,  c.  511  of  1853, 
Laws  of  1853,  p.  974.  These  provisions  run  as  follows,  and 
apply  not  merely  to  process  for  the  commencement,  but  also  to 
notices,  &c,  pending  the  prosecution  of  an  action.  They  effect 
an  important  change,  and  afford  additional  and  important  facil- 
ities for  the  bona  fide  commencement  or  prosecution  of  an  action 
against  parties  not  responding  in  the  same  spirit. 

Whenever  it  shall  satisfactorily  appear,  to  any  court,  or  any  judge 
of  the  Supreme  Court,  or  any  county  judge,  by  the  return  or  affidavit 
of  any  sheriff,  deputy  sheriff,  or  constable,  authorized  to  serve  or 
execute  any  process  or  paper  for  the  commencement,  or  in  the  prose- 
cution, of.  any  action  or  proceeding,  that  proper  and  diligent  effort 
has  been  made  to  serve  any  such  process  or  paper  on  any  defendant 
in  any  such  action,  residing  in  this  State,  and  that  such  defendant  cannot 
be  found,  or,  if  found,  avoids  or  evades  such  service,  so  that  the  same 
cannot  be  made  personally,  by  such  proper  diligence  and  effort,  such 
court  or  judge,  may,  by  order,  direct  the  service  of  any  summons,  sub- 
poena, order,  notice  or  other  process  or  paper  to  be  made  by  leaving  a 
copy  thereof  at  the  residence  of  the  person  to  be  served,  with  some  per- 
son of  proper  age,  if  admittance  cannot  be  obtained,  or  any  such  proper 
person  found,  who  will  receive  the  same,  by  affixing  the  same  to  the 
outer  or  other  door  of  said  residence,  and  by  putting  another  copy 
thereof,  properly  folded  or  enveloped,  and  directed  to  the  person  to  be 
served,  at  his  place  of  residence,  into  the  post  office  in  the  town  or  city 
where  such  defendant  resides,  and  paying  the  postage  thereon. 

On  filing  with  the  clerk  of  the  county  where  such  defendant  resides, 
or  the  county  in  which  the  complaint  in  any  such  action  is  by  law  to  be 
filed,  an  affidavit  showing  service  according  to  such  order,  such  sum- 
mons, subpoena,  order,  notice,  or  other  process  or  paper,  shall  be 
deemed  served,  and  the  same  proceedings  may  be  taken  thereon  as  if 
the  same  had  been  served  by  delivery  to  such  defendant  personally  or 
otherwise,  as  by  law  now  required  ;  but  the  court  may,  upon  any  applica- 
tion by  them  deemed  reasonable,  at  any  time,  permit  any  defendant  to 
appear  and  defend,  or  have  such  other  relief,  in  any  action  or  proceed- 
ing founded  on  any  such  service,  as  the  nature  of  the  case  may  require. 

Service  by  Publication.'] — In  those  cases  where  the  defendant 


132  SUMMONS,  AND  ITS  SERVICE. 

is  non-resident,  or  cannot  be  found  within  the  limits  of  the 
State,  the  summons  may  be  served  by  publication,  according  to 
the  former  practice  in  equity ;  and  this  remedy  is  not,  like  the 
former,  of  recent  introduction,  but  is,  on  the  contrary,  coeval 
with  the  Code. 

The  provisions  of  that  measure  on  this  important  subject  are, 
as  they  now  stand,  as  follows : 

§  135.  Where  the  person,  on  whom  the  service  of  the  summons  is 
to  be  made,  cannot,  after  due  diligence,  be  found  within  the  State,  and 
that  fact  appears  by  affidavit  to  the  satisfaction  of  the  court  or  a  judge 
thereof,  or  of  the  county  judge  of  the  county  where  the  trial  is  to  be 
had,  and  it  in  like  manner  appears  that  a  cause  of  action  exists  against 
the  defendant,  in  respect  to  whom  the  service  is  to  be  made,  or  that  he 
is  a  proper  party  to  an  action  relating  to  real  property  in  this  State, 
such  court  or  judge  may  grant  an  order  that  the  service  be  made  by 
the  publication  of  a  summons,  in  either  of  the  following  cases : 

1.  Where  the  defendant  is  a  foreign  corporation,  and  has  property 
within  the  State,  or  the  cause  of  action  arose  therein. 

2.  Where  the  defendant,  being  a  resident  of  this  State,  has  departed 
therefrom,  with  intent  to  defraud  his  creditors,  or  to  avoid  the  service 
of  a  summons,  or  keeps  himself  concealed  therein  with  the  like  intent. 

3.  Where  he  is  not  a  resident  of  this  State,  but  has  property  therein, 
and  the  action  arises  on  contract,  and  the  court  has  jurisdiction  of  the 
subject  of  the  action. 

4.  Where  the  subject  of  the  action  is  real  or  personal  property  in 
this  State,  and  the  defendant  has,  or  claims  a  lien  or  interest,  actual  or 
contingent,  therein,  or  the  relief  demanded  consists  wholly  or  partly  in 
excluding  the  defendant  from  any  interest  or  lien  therein. 

5.  Where  the  action  is  for  divorce,  in  the  cases  prescribed  by  law. 
The  order  must  direct  the  publication  to  be  made  in  two  newspapers, 

to  be  designated  as  most  likely  to  give  notice  to  the  person  to  be 
served,  and  for  such  length  of  time  as  may  be  deemed  reasonable,  not 
less  than  once  a  week  for  six  weeks.  In  case  of  publication,  the  court 
or  judge  miut  also  direct  a  copy  of  the  summons  and  complaint  to  be 
forthwith  deposited  in  the  post-office,  directed  to  the  person  to  be 
served,  at  his  place  of  residence,  unless  it  appear  that  such  residence  is 
neither  known  to  the  party  making  the  application,  nor  can  with  rea- 
sonable diligence  be  ascertained  by  him.  When  publication  is  ordered, 
personal  service  of  a  copy  of  the  summons  and  complaint  out  of  the 
State  is  equivalent  to  publication  and  deposit  in  the  post-office. 

The  defendant  against  whom  publication  is  ordered,  or  his  represent- 
atives, on  application  and  sufficient  cause  shown,  at  any  time  before 


SUMMONS,  AND  ITS  SERVICE.  133 

judgment,  must  be  allowed  to  defend  the  action;  and,  except  in  an 
action  for  divorce,  the  defendant,  against  whom  publication  is  ordered, 
or  bis  representatives,  may,  in  like  manner,  upon  good  cause  shown,  be 
allowed  to  defend  after  judgment,  or  at  any  time  witbin  one  year  after 
notice  thereof,  and  within  seven  years  after  its  rendition,  on  such  terms 
as  may  be  just;  and  if  the  defence  be  successful,  and  the  judgment, 
or  any  part  thereof,  have  been  collected,  or  otherwise  enforced,  such 
restitution  may  thereupon  be  compelled  as  the  court  directs ;  but  the 
title  to  property  sold  under  such  judgment  to  a  purchaser  in  good 
faith  shall  not  be  thereby  affected.  And  in  all  cases  where  publication 
is  made,  the  complaint  must  be  first  filed,  and  the  summons,  as  pub- 
lished, must  state  the  time  and  place  of  such  filing. 

The  powers  under  this  section,  as  it  stood  in  the  former  mea- 
sure, are  in  some  respects  restricted,  in  others  enlarged  by  the 
amendments  of  1851.  The  restrictions  imposed  are  with  refer- 
ence to  the  application  to  the  county  judge,  and  as  to  the 
necessity  of  a  foreign  corporation  having  property  within  the 
State,  in  order  to  ground  a  right  to  this  species  of  relief  against 
them.  The  power  of  service  in  cases  falling  under  subdivision 
2,  which,  in  the  former  act,  was  limited  to  actions  arising  out  of 
contract,  is  now  on  the  contrary  relieved  from  that  restriction ; 
and  those  imposed  upon  applications  for  leave  to  defend  before 
judgment  are  now  removed.  The  provisions  for  the  protection 
of  bona  fide  purchasers,  under  judgments  obtained  in  this  man- 
ner, have  also,  for  the  first  time,  been  inserted  by  those  amend- 
ments. 

The  cases  with  reference  to  service  upon  a  foreign  corporation, 
have  been  already  cited  in  the  course  of  this  chapter.  See  also 
observations  below  as  to  non-resident  defendants. 

Fraudulent  Departure  or  Concealment.'] — In  the  subsequent 
portion  of  the  work  which  is  devoted  to  the  consideration  of 
the  provisional  remedy  of  attachment,  the  question  as  to  what 
will,  or  will  not,  be  considered  as  a  fraudulent  departure  or 
concealment,  will  be  found  treated  of  in  detail.  See  in  particu- 
lar the  cases  of  Morgan  v.  Avery,  2  C.  K.  91,  7  Barb.  656  ;  Cam- 
man  v.  Tompkins,  1  C.  E.  (1ST.  S.)  12 ;  Gilbert  v.  Tompkins,  Id. ; 
and  Genin  v.  Tompkins,  12  Barb.  265.  Where  a  defendant  had 
established  a  regular  system,  by  which  he  had  always  notice  of 
the  approach  of  the  sheriff,  with  a  view  to  prevent  service  ;  but 
afterwards  followed  him,  on  horseback,  within  sight,  but  out  of 


134  SUMMONS,  AND  ITS  SERVICE. 

reach,  service  by  publication  was  denied,  on  the  ground  that, 
though  the  intent  was  obvious,  it  could  neither  be  said  that  the 
defendant  "  could  not  be  found,"  or  that  "  he  kept  himself  con- 
cealed." Van  Rensselaer  v.  Dunbar,  4  How.  151.  This  last  state 
of  things  is  now  provided  for  by  c.  511  of  the  Laws  of  1853, 
above  cited. 

Non- Residence.'] — The  law  on  this  subject  is  distinctly  laid 
down  in  Haggart  v.  Morgan,  1  Seld.  422,  where  it  is  held  that  a 
person  may  be  a  non-resident,  within  the  meaning  of  the  statutes 
relative  to  non-resident  debtors,  while  his  domicil  continues 
within  the  State.  The  debtor,  in  that  case,  had  been  detained 
abroad  for  three  years  and  upwards,  though  keeping,  and  having 
previously  kept  up  a  house  within  the  city  of  New  York,  and 
intending  at  some  time  to  return.  Under  these  circumstances, 
he  was  held  to  be  a  non-resident,  and  an  attachment  sustained 
against  him.  See  same  principles  laid  down  by  the  court  be- 
low, in  Haggart  v.  Morgan,  5  Sandf.  198.  Similar  distinctions 
between  residence  and  domicil  are  drawn  by  the  same  court,  in 
Bartlett  v.  The  City  of  Neiv  York,  5  Sandf.  44 ;  and  Clason  v. 
Corley,  5  Sandf.  454.  The  converse  of  this  proposition,  i.  e., 
that  a  party  originally  a  resident,  but  who  had  emigrated  to 
another  State,  and  had  since  returned  on  a  visit  to  New  York, 
and  was  then  undetermined  as  to  where  he  should  finally  reside, 
was  a  non-resident,  within  the  meaning  of  the  provisions  of  the 
Code  as  to  attachments,  will  be  found  laid  down  in  Burrows  v. 
Miller,  4  How.  349. 

In  actions  where  the  defendant  is  non-resident,  the  fact  of  his 
having  property  within  the  State  must  appear  distinctly  and 
aflinnatively,  or  the  court  will  have  no  jurisdiction.  It  would 
seem,  that,  in  these  cases,  no  previous  attempt  to  serve  process  is 
necessary,  the  proof  of  non-residence  being,  of  itself,  sufficient 
evidence  that  the  party  cannot  be  found  within  the  State.  Ver- 
nam  v.  H6Ibroo7e}  5  How.  3;  Rawdonv.  Corbin,  3  How.  416.  See 
observations  above  as  to  the  absolute  necessity  of  service  of  this 
nature,  in  all  cases  where  the  defendants  arc  non-residents,  and 
cannot  bo  served  within  the  jurisdiction. 

Affidavits  <>"  Application.] — The  utmost  care  should  betaken 
in  the  preparation  of  the  affidavits  on  which  the  application  is 
grounded,  as  the  courts  are  extremely  strict  in  requiring  that 
every  provision  should  be  complied  with.     See  Evertson  v.  Tho- 


SUMMONS,  AND   ITS  SERVICE.  135 

mas,  5  How.  45;  3  C.  R.  74.  The  facts  necessary  to  confer  juris- 
diction must  be  stated  positively,  and  not  on  mere  information 
and  belief,  (Id.,)  although,  of  course,  this  rule  admits  of  some 
qualification,  with  reference  to  facts  not  within  the  personal 
knowledge  of  the  party  making  the  affidavit.  See  this  point 
fully  treated  in  a  subsequent  chapter,  under  the  analogous  head 
of  Attachment,  and  also  with  reference  to  the  necessary  evi- 
dence in  cases  of  arrest. 

In  every  such  affidavit,  substantive  statements  of  the  exist- 
ence of  a  cause  of  action  sufficient  to  give  jurisdiction,  and  of 
facts  sufficient  whereon  to  ground  this  peculiar  species  of  relief, 
that  a  summons  and  complaint  have  been  made  out,  and, 
where  the  application  is  under  subdivision  2,  that  due  diligence 
has  been  used  for  the  purpose  of  attempting  to  serve  the  former, 
are  absolutely  essential,  and  the  summons  ought  to  be  recited 
in  the  affidavit,  or  referred  to  as  being  annexed.  See  Raivdon 
v.  Corbin,  3  How.  416.     See  also  Note,  1  C.  E.  13. 

N.  B.— These  decisions  were  under  the  Oode  of  1848,  but  the 
amended  measures  are  still  more  imperative  upon  the  same 
pomts.  A  form  of  affidavit  on  applications  of  this  nature  will 
be  found  in  the  Appendix.  As  a  matter  of  course,  every  fact 
which  tends  to  show  a  fraudulent  departure  or  concealment, 
must  be  clearly  and  distinctly  stated,  with  all  necessary  detail, 
where  an  inference  to  that  effect  is  to  be  drawn  from  any  com- 
bination of  circumstances;  and,  equally  of  course,  the  facts  so 
to  be  proved  may  be  sustained  by  different  affidavits,  where 
they  are  not  all  within  the  knowledge  of  one  single  party. 

The  disposal  of  the  affidavits  to  be  used  does  not  appear  to 
be  pointed  out  by  the  Code,  but  the  usual,  and  doubtless  the 
proper  practice,  will  be  to  file,  or  to  leave  them  with  the  judge 
who  grants  the  order;  Vernam  v.  Uolbrook,  5  How.  3,  above 
cited.  This  appears  most  essential,  with  a  view  to  establishing 
the  validity  of  the  proceedings,  if  called  into  question  thereaf- 
ter. In  the  same  case,  a  third  affidavit,  not  filed  with  the  order, 
supplying  defects  in  two  which  were  so  filed,  was  admitted  as  suf- 
ficient to  sustain  the  proceeding,  on  allegation  that  it  had  been 
used  before  the  judge ;  and  a  motion  to  set  aside  the  order,  on 
the  ground  of  defects  in  the  affidavits  which  had  been  filed,  was 
denied. 

Form  of  Order,  cfrc] — The  form  of  order  to  be  drawn  up  on 
applications  of  this  nature  will  be  found  in  the  Appendix. 


136  SUMMONS,  AND   ITS  SERVICE. 

The  applicant  should  of  course  be  prepared  with,  the  names 
of  two  newspapers,  to  be  inserted  in  the  order,  and  also  with 
the  direction  of  the  defendant,  or  proof  that  his  residence  can- 
not, after  due  diligence,  be  ascertained.  In  this  latter  case,  an 
allegation  to  this  effect,  and  proving  the  exercise  of  that  dili- 
gence, must  of  course  be  inserted  in  the  affidavits.  It  is  need- 
less  to  observe,  that  the  strictest  compliance  with  every  direc- 
tion contained  in  the  order  is  essential.  The  forms  of  affidavit 
necessary  for  the  proof  of  that  compliance,  will  be  found  in  the 
Appendix. 

Service  out  of  State,  Effect  of.'] — In  Litchfield  v.  Bumvell,  5  How. 
341,  1  C.  R.  (N.  S.)  42,  9  L.  O.  182,  it  was  held  that  personal 
service  out  of  the  limits  of  the  State  in  no  respect  did  away  with 
the  necessity  of  publication  under  the  order,  and  that  its  effect 
was  merely  to  dispense  with  the  service  by  mail  also  required  as 
above.  This  view  seemed  doubtful  at  the  best,  and  has  since 
been  overruled  in  Watson  v.  The  Cabot  Bank,  5  Sandf.  423,  where 
it  was  held  that,  by  a  voluntary  appearance,  a  defendant  waived 
all  objection  to  the  mode  of  service,  and  that,  under  these  circum- 
stances, jurisdiction  of  the  person  was  acquired,  whether  publi- 
cation was  or  was  not  in  fact  made ;  and  also  in  Dyhers  v.  Wood- 
'card,  7  How.  313,  where  it  was  held,  distinctly,  that  the  defend- 
ant time  to  answer  began  to  run  from  the  time  of  personal 
service  on  him  out  of  the  State,  without  regard  as  to  whether 
the  publication  of  the  summons  was  or  was  not  complete ;  a 
default  which  had  been  taken  in  that  case,  under  the  above  cir- 
cumstances, was  accordingly  refused  to  be  opened,  and  judgment 
riven  for  the  plaintiffs. 

Service  within  the  State,  upon  the  responsible  officer  of  a 
foreign  corporation,  would  appear  to  be  merely  equivalent  to 
personal  Bervice  out  of  the  State,  on  a  non-resident  defendant, 
and  in  oo  respect  to  dispense  with  the  necessity  of  an  order  for 
publication  being  obtained,  or  of  the  other  requisites  of  that 
order  being  complied  with.  See  Hidbert  v.  The  Hope  Mutual 
I,,  wrance  Company^  before  cited. 

The  complaint  nerd  not  be  published  with  the  summons. 
Anon.}B  Bow.  298;  I  C.  R.  1 02,  a  point  clear  from  the  terms  of 
the  act  itself.  It  is  essential,  however,  that  it  should  be  previ- 
ously Bled,  and  that  the  summons  should  state  the  date  and 
place  of  the  filing,  or  the  order  will  be  irregular. 


SUMMONS,  AND  ITS  SERVICE.  IgJ 

When  Service  complete] — With  the  exception  of  the  cases  last 
referred  to,  service  of  this  nature  will  not,  as  a  general  rule,  be 
held  to  be  complete,  and  the  action  commenced,  until  the  ex- 
piration of  the  time  of  publication,  as  prescribed  in  the  order, 
sec.  137.  Where,  therefore,  the  defendant  had  died  during 
that  period,  it  was  held  at  special  term  that  no  action  was  pend- 
ing, that  could  be  revived  against  his  representatives.  McEwen's 
Executor  v.  Public  Administrator,  8  C.  R.  139. 

The  above  general  doctrine  was  confirmed  by  the  General 
Term  on  appeal,  though,  with  reference  to  the  peculiar  circum- 
stances of  the  case,  it  was  held  that  an  action  had  been  duly 
commenced  against  the  deceased,  by  the  granting  of  the  provi- 
sional remedy  of  attachment  during  his  lifetime.  Moore  v.  Thayer, 
6  How.  47,  3  C.  R  176,  10  Barb.  258. 

The  proceedings  with  reference  to  the  entry  of  judgment  on 
the  expiration  of  the  time  limited  for  publication,  will  be  here- 
after considered.  It  has  been  an  usual  practice  to  enter  up  such 
judgment  forthwith,  on  the  expiration  of  the  period  mentioned 
in  the  order.  In  Tomlinson  v.  Van  Vechlen,  however,  6  How. 
199;  1  C.  R.  (N.  S.)  317,  it  was  held  that  the  service  of  the 
summons  is  not  complete  until  that  time,  and  that  the  defend- 
ant has  the  usual  period  of  twenty  days  to  answer,  in  addition, 
before  judgment  can  be  taken.  See,  however,  Dyhers  v.  Wood- 
ward, above  noticed. 

Defendant's  power  to  come  in  and  defend] — It  remains  to  notice 
the  measures  which  the  defendant  may  take  to  set  aside  service 
of  this  nature,  or  to  obtain  leave  to  come  in  and  defend,  after 
judgment  obtained  thereon. 

It  will  be  seen  that,  at  any  time  before  judgment,  the  defend- 
ant may  come  in  and  defend,  as  of  course;  and  that  he  pos- 
sesses the  full  power  of  doing  so,  and  of  enforcing  restitution, 
if  he  prevail,  (except  as  regards  the  rights  of  bond  fide  pur- 
chasers,) within  a  very  extended  period  after  its  rendition, 
except  in  the  single  case  of  divorce,  on  proof  that  he  has  not 
had  a  full  year's  previous  notice  of  such  judgment;  a  provision 
which  renders  it  highly  advisable  that,  wherever  practicable,  a 
formal  notice  of  judgment  being  entered  should  be  forthwith 
served  upon  him  on  the  part  of  the  plaintiff.  Under  the  Code 
of  1849,  a  defendant,  who  had  been  personally  served  out  of 
the  State,  or  who  had  received  the  summons  by  post,  was  pre- 


138  SUMMONS,  AND  ITS  SERVICE. 

eluded  from  coming  in  to  defend  after  judgment.  See  Hulbert 
v.  The  Hope  Mutual  Insurance  Company,  before  cited;  but  this 
restriction  no  longer  exists  under  the  recent  amendments. 

The  courts  will  not,  however,  interfere  with  the  discretion  of 
a  justice,  granting  an  order  of  this  nature,  or  set  such  order 
aside,  merely  because  the  evidence  on  which  it  was  granted 
was  slight.     Roche  v.  Ward,  7  How.  416. 

General  Remarks .] — In  many  cases  where  an  order  of  this 
description  is  obtainable,  the  same  state  of  facts  will  warrant 
an  application  for  an  attachment,  (see  Moore  v.  Thayer,  above 
cited,)  which  may  be  made  at  the  same  time,  and  on  the  same 
affidavits;  though  it  by  no  means  follows  that  the  latter  will, 
in  all  cases,  be  also  granted — the  greater  stringency  of  that 
species  of  remedy,  rendering  the  courts  more  jealous  as  to  its 
exercise. 

By  the  above  section,  provision  is  not  made  for  the  case  of  a 
defendant,  whose  residence  cannot  be  ascertained  on  due  in- 
quiry. In  Close  v.  Van  Husen,  6  How.  157,  it  was  held  that, 
under  these  circumstances,  the  plaintiff  still  possessed  a  remedy 
in  equitable  cases,  under  the  act  of  April  12,  Laws  of  1842, 
p.  368,  where  the  last  known  residence  of  the  defendant  was 
within  the  State;  and  that  such  act  was  not  inconsistent  with 
the  Code,  and  therefore  still  in  force.  The  plaintiff,  it  was 
held,  "should  present  his  application  by  petition,  bringing  his 
case  within  the  135th  section  of  the  Code,  so  far  as  form  is 
concerned,  and  the  first  section  of  the  act  of  1842.  The  pub- 
lication of  the  order  should  be  in  two  newspapers,  to  be  de- 
signated as  most  likely  to  give  notice  to  the  persons  to  be 
served,  and  for  the  period  of  three  months.  (Compare  Code, 
sec.  13.0,  with  Law  of  12th  April,  1842,  sec.  2,  subd.  2.)"  This 
state  of  things  is,  however,  now  provided  for  by  the  recent 
statute,  e.  5]  |  ,,{■  the  Laws  of  1853,  above  noticed. 


§  46.   Service,  on  several  Defendants,  Joint  Debtors,  SfC. 

The  provi  ionB  Of  section  136,  under  which,  in  actions  against 
several  defendants,  the  summons  may  be  served  upon  any  one 
or  more  of  them  alone,  and  separate  procedings  taken  there- 
upon, against  the  parties  BO  served,  will  be  remarked;  though, 


SUMMONS,  AND  ITS  SERVICE.  139 

of  course,  it  will  be  premature,  at  this  point,  to  enter  into  the 
details  of  those  proceedings.  The  peculiar  description  of  pro- 
cess by  means  of  which  parties  against  whom  a  joint  judgment 
has  been  entered  without  personal  service  upon  them,  or 
the  representatives  of  a  deceased  judgment-debtor  may  be 
respectively  summoned  to  show  cause  why  they  should  not 
be  bound  by  the  judgment  already  on  record,  will  be  hereafter 
considered  in  connection  with  those  proceedings.  See  sections 
375  to  378  inclusive,  and  Forms  in  Appendix. 

§  47.  Proof  of  Service. 

The  following  are  the  provisions  of  the  Code  on  the  subject 
of  the  proof  of  service  of  summons,  &c,  as  above  : — 

§  138.  Proof  of  the  service  of  the  summons,  and  of  the  complaint  or 
notice,  if  any,  accompanying  the  same,  must  be  as  follows  : 

1.  If  served  by  the  sheriff,  his  certificate  thereof;  or, 

2.  If  by  any  other  person,  his  affidavit  thereof;  or, 

3.  In  case  of  publication,  the  affidavit  of  the  printer,  or  his  foreman, 
or  principal  clerk,  showing  the  same;  and  an  affidavit  of  a  deposit  of  a 
copy  of  the  summons  in  the  post-office,  as  required  by  law,  if  the  same 
shall  have  been  deposited  ;  or, 

4.  The  written  admission  of  the  defendant. 

In  case  of  service,  otherwise  than  by  publication,  the  certificate,  affi- 
davit, or  admission,  must  state  the  time  and  place  of  the  service. 

Sheriff's  Certificate.'] — It  is  essential  that  the  sheriff's  certifi- 
cate should  identify  the  summons  and  complaint  served  by  him, 
as  being  the  summons  and  complaint  in  the  cause,  or  the  service 
will  be  defective.  Litchfield  v.  Bunvell,  5  How.  341 ;  9  L.  O. 
182;  1  C.  E.  (N.  S.)  42.  With  respect  to  the  conclusiveness  of 
the  sheriff's  certificate,  see  sec.  44  in  the  prior  portion  of  the 
chapter,  and  the  various  cases  there  cited. 

The  sheriff's  fees,  in  respect  of  service  of  process  and  papers 
as  above,  are  as  follows :  For  service  of  the  summons,  or  sum- 
mons and  complaint,  50  cents;  for  service  of  notice  of  object  of 
suit,  37^  cents  in  addition ;  and  for  his  certificate  of  the  service 
of  both  summons  and  notice,  one  fee  of  12^  cents  onty,  in  ad- 
dition to  those  for  mileage,  at  6  cents  per  mile,  for  going  only, 
to  which  he  is  entitled  under  the  Eevised  Statutes,  2  E.  S. 
644.     See  Gallagher  v.  Fgan,  2  Sandf.  742. 


140  SUMMONS,  AND  ITS  SERVICE. 

Affidavits,  Admissions,  Sc] — The  necessary  particulars  of  the 
affidavit  of  service,  when  made  by  a  person  in  the  ordinary 
form,  are  fully  prescribed  by  Eule  90  of  the  Supreme  Court : 
see  Form,  in  Appendix.  The  forms  of  affidavits  in  cases  of 
service  by  publication  are  also  there  given.  Where  the  written 
admission  of  the  defendant  is  relied  upon,  it  would  seem  from 
Litchfield  v.  Burwell,  above  cited,  that  it  is  absolutely  essential 
that  his  signature  to  such  admission,  and  the  fact  that  he  is  the 
party  to  the  cause,  should  be  proved  by  independent  evidence. 
The  court  will  take  judicial  notice  of  the  signatures  of  its 
officers,  because  they  are  such,  but  they  cannot  be  presumed  to 
know  that  of  a  party  defendant,  who  has  not  appeared  in  the 
cause. 

§  48.  Appearance  of  Defendant. 

The  provision  in  sec.  139,  with  regard  to  the  voluntary 
appearance  of  a  defendant  being  equivalent  to  due  service  upon 
him,  is  one  of  the  amendments  of  1851,  and  is  of  course  highly 
calculated  to  promote  the  convenience  of  suitors,  though  per- 
haps, in  strictness,  only  declaratory  of  the  previous  law  upon 
the  subject. 

As  a  general  rule,  it  holds  good  that  a  voluntary  appear- 
ance in  an  action  waives  all  objection  to  the  process  by  which 
it  was  commenced.  See  Webb  v.  Mott,  6  How.  439  ;  Hewitt  v. 
Howell,  8  How.  346,  above  cited.  See  also  Watson  v.  Cabot  Bank, 
5  Sandf.  423 ;  Flynn  v.  Hudson  River  Railroad  Company,  6  How. 
308 ;  10  L.  0. 158.  This  rule,  though  sound  in  general,  is  not, 
however,  of  conclusive  application.  Thus,  in  Voorhies  v.  Scofield, 
7  How.  51,  it  was  considered  that  where  the  summons  is  served 
alone,  and  the  defendant  is  obliged  to  demand  a  copy  of  the 
complaint,  in  order  to  see  what  it  contains,  he  might  still,  un- 
der these  circumstances,  object  to  the  summons  for  irregularity, 
on  a  manifest  variance  thus  becoming  apparent;  and  the  general 
principle  to  the  contrary,  as  broadly  laid  down  in  Webb  v.  Mott, 
above  cited,  was  so  far  doubted.  In  Grainger  v.  Schwartz,  also, 
11  L.  <  ).?,-\<',.  it  w.'i  held  that  a  general  appearance  on  the  part  of 
the  defendant  will  not  effect  a  waiver  of  a  jurisdictional  defect 
in  the  plaintiff's  proceedings. 

One  of  several  defendants,  who  has  not  yet  been  served  with 
process,  cannot  voluntarily  appear  and   move  to  dismiss  the 


SUMMONS,  AND  ITS  SERVICE  14L 

complaint,  under  sec.  274,  where  his  rights  are  not  affected. 
He  must  be  contented  to  remain  quiet  out  of  court,  until  invited 
to  appear  there,  unless  he  has  some  right  to  protect,  rendering 
such  appearance  necessary.     Tracy  v.  Reynolds,  7  How.  327. 

The  periods,  at  which  an  action  will  be  held  to  have  been 
commenced  by  service  or  delivery  of  process  to  the  sheriff,  and 
also  with  reference  to  publication,  or  the  allowance  of  a  pro- 
visional remedy,  have  already  been  considered,  under  the  head 
of  Limitations.     See  ante,  sec.  37 ;  Code,  sees.  99  and  139. 


§  49.  Closing  Remarks  on  above  head. 

Before  entering  upon  the  general  proceedings  in  a  suit,  the 
appointment  of  a  guardian  ad  litem,  and  his  duties,  may  advan- 
tageously be  considered  at  the  present  juncture;  as,  where  suit 
is  brought  in  the  name  of  an  infant,  such  appointment  must,  of 
necessity,  take  place  as  a  preliminary  to  any  other  proceeding 
in  the  action,  and,  in  fact,  to  the  bringing  of  the  action  itself. 
The  subject  of  a  similar  appointment  on  behalf  of  an  infant 
defendant,  and  that  of  the  appointment  of  a  general  guardian 
under  the  old  practice,  and  the  duties  of  the  latter,  bear  so  close 
a  relation  to  that  last  proposed,  that,  although  the  former  pro- 
perly belongs  to  a  later  period  of  the  action,  and  the  latter  is,  in 
strictness,  referable  to  the  head  of  special  proceedings,  the  pre- 
sent seems  evidently  the  most  convenient  stage  of  the  work  for 
a  separate  consideration  of  these  subjects,  as  one  connected  whole ; 
which  course  will  accordingly  be  pursued  in  the  succeeding 
chapter,  references  being  made  to  it,  in  the  subsequent  portions 
of  the  work,  where  requisite. 


142  APPOINTMENT  OF  GUARDIAN. 

CHAPTER     IV. 

OF  THE  APPOINTMENT  OF  GUARDIAN,  AND  HIS  DUTIES. 


§  50.  General  Remarks. 

This  proceeding  is  one  of  those  provided  for  by  the  Code, 
and  the  rules  of  the  Supreme  Court,  and  is  necessary  to  be 
taken  at  the  outset  of  any  suit  whatsoever,  to  which  an  infant 
is  a  party,  whether  plaintiff  or  defendant.  The  question  has 
also  a  general  aspect,  in  relation  to  the  guardianship  of  infants 
holding  property,  irrespective  of  any  suit  brought  by  or  against 
them ;  and  the  consideration  of  it  has  therefore  been  reserved 
for  the  present  juncture. 

The  subject  divides  itself  accordingly  into  two  separate,  though 
connected  heads,  viz;  1.  The  appointment  of  a  general  guard- 
ian; and  2.  That  of  a  guardian  ad  litem.  The  provisions  of 
the  Code  itself  have  only  reference  to  the  latter  subject ;  those 
of  the  rules,  however,  embrace  both. 

§  51.   General    Guardian. 

The  questions  in  relation  to  the  appointment  and  duties  of  a 
general  guardian,  'depend  entirely  and  exclusively  upon  the 
provisions  of  the  Revised  Statutes,  and  are  in  all  respects  gov- 
erned by  the  old  practice.  Any  thing  beyond  a  mere  general 
reference  to  them,  would  therefore  be  clearly  incompatible 
with  the  present  work,  and  will  not,  accordingly,  be  attempted. 

The  appointment  of  a  guardian  of  this  nature,  rests  with  the 
father  of  the  infant,  in  the  first  instance;  and,  in  default  of 
appointmenl  by  him,  with  the  courts.  The  rights  of  the 
former  in  this  respect,  are  specially  saved  by  sees.  1,  2,  and 
3,  of  title  III.  chap.  VIII.  part  II.  of  the  Revised  Statutes,  2  R. 
S.  L50,  .'Hid  are  exercisable  by  deed  or  will.  The  rights  and 
powers  of  ;i  guardian  so  appointed  are  absolute,  and  prevail 
over  those  of  the  guardian  in  socage  under  the  common  law, 
as  saved  by  sees.  0  to  7,  of  art.  I.  title  I.  chap.  I.  part  II.  of  the 


APPOINTMENT  OF  GUARDIAN.  143 

same  statutes,  1  R.  S.  718.  The  latter  are,  in  fact,  little-  better 
than  illusory,  as,  under  sec.  7,  of  that  article,  they  are  to  be 
superseded,  in  all  cases  where  a  special  appointment  shall  have 
taken  place. 

In  default  of  nomination  by  the  father  as  above,  the  appoint- 
ment of  a  guardian  rests  with  the  courts,  either  by  inherent  or 
special  authority.  The  inherent  authority  in  this  respect  was 
vested  in  the  chancellor,  before  the  abolition  of  that  high  office, 
and  now  rests  with  the  Supreme  Court,  as  exercising  its  duties 
by  substitution.  The  practice  of  the  latter  tribunal,  in  this 
respect,  is  fully  defined  by  the  recent  rules,  Nos.  54  to  62  in- 
clusive, which  should  be  carefully  consulted  accordingly.  A 
special  statutory  authority  is  also  exercisable  by  the  surrogate, 
under  title  III.  chap.  VIII.  part  II.  of  the  Ee vised  Statutes 
before  referred  to,  which  title,  together  with  the  works  on  the 
practice  of  those  tribunals,  should  therefore  be  fully  looked  into, 
though  even  a  notice  of  them  would  be  beyond  the  province  of 
the  present  work. 

The  rules  of  the  Supreme  Court  above  alluded  to,  provide 
shortly  as  follows :  The  general  guardian  of  an  infant  is  to  be 
appointed  on  petition  of  the  infant  himself,  if  fourteen  or  up- 
wards ;  or  if  under  that  age,  then  of  some  relative  or  friend. 
Rule  57.  The  petition  must  state  full  particulars;  and  the 
court,  under  rule  58,  are  to  examine  into  all  the  circumstances, 
and  name  a  proper  person. 

The  security  to  be  given  by  such  guardian  on  his  appoint- 
ment, is  prescribed  by  rule  55  ;  and  no  moneys  arising  from  the 
sale  of  real  estate  of  an  infant,  on  mortgage  or  partition  sale, 
or  under  a  decree  or  judgment,  except  any  portion  of  principal 
or  income  allowed  for  maintenance  of  the  infant,  are  to  be  paid 
over  to  him,  unless  he  have  given  sufficient  security  on  unin- 
cumbered real  property,  rule  56;  and  a  general  guardian  al- 
ready appointed,  may,  under  rule  54,  be  required  to  give  fur- 
ther security  in  cases  of  this  nature. 

Provision  is  made  by  art.  VII.  title  II.  chap.  I.  part  III.  of 
the  Revised  Statutes,  2  R.  S.  194  to  197,  in  relation  to  the  sale 
of  the  real  estates  of  infants  on  special  application;  and  the 
practice  to  be  adopted  in  this  respect,  the  nature  of  the  petition, 
the  security  to  be  given,  the  form  of  order  to  be  made,  and  the 
proceedings  thereon,  will  be  found  fully  prescribed  by  rules 
59  to  62  inclusive. 


144  APPOINTMENT  OF  GUARDIAN. 

The  following  anonymous  case  is  reported  at  4  How.  414, 
with  reference  to  the  security  to  be  given  under  rale  59. 

A  guardian  having  been  appointed,  under  rule  61,  to  sell  a 
piece  of  real  estate  belonging  to  live  infants,  and  the  order 
having  directed  separate  surety  bonds  to  be  given  to  each 
infant,  in  the  sums  thereby  expressed,  five  bonds  were  given 
accordingly,  Avith  a  separate  affidavit  on  each,  the  same  persons 
being  sureties  in  all.  It  was  held  that,  to  make  such  parties 
competent  as  sureties,  they  must  justify  in  the  aggregate 
amount  of  all  the  bonds  given.  One  only  of  such  bonds  was 
therefore  approved ;  and,  as  to  the  other  four,  it  was  held  there 
must  be  other  sureties,  or  a  further  justification. 

In  White  v.  Parker,  8  Barb.  48,  the  general  relations  of 
guardian  and  ward,  and  the  duties  and  responsibilities  of  the 
former,  are  very  fully  reviewed,  and  the  following  conclusions 
were  come  to  by  the  court : 

It  is  the  duty  of  a  guardian  to  get  possession  and  control  of 
his  ward's  personal  property,  and  the  rents  and  profits  of  his 
real  estate  ;  to  keep  and  protect  the  same  ;  to  keep  it  invested ; 
and  to  render  a  just  and  true  account  thereof,  on  the  ward's 
becoming  of  age. 

He  cannot  trade  with  it  himself,  on  account  of  his  ward,  nor 
buy  or  use  his  ward's  property  for  his  own  benefit. 

All  advantageous  bargains  which  a  guardian  makes  with  the 
ward's  funds,  will  enure  to  the  benefit  of  the  ward,  at  his 
election. 

He  cannot  convert  the  personal  property  of  his  ward  into 
real  estate,  or  buy  land  with  the  ward's  money.  If  he  does 
so,  his  ward,  when  he  arrives  at  full  age,  will  be  entitled,  at 
his  election,  to  take  the  land  or  the  money  with  interest. 

He  should  keep  his  ward's  property  separate  from  his  own; 
otherwise  be  will  make  it  his  own,  so  far  as  to  be  accountable 
for  it,  if  lost.  If  he  takes  notes  or  other  securities,  for  money 
beloi  i  his  ward,  in  his  own  name,  he  converts  the  pro- 

pert?  to  bis  own  use,  and  is  prima  facie  accountable  for  it. 

Thus,  if  the  guardian  surrenders  contracts  for  land,  and  takes 
deeda  in  bis  own  name,  and  pledges  his  personal  responsibility 
for  :i  part  of  the  purchase-money,  this  will  be  held  a  conversion 
of  the  contracts  to  bis  own  use;  and  the  ward  may  adopt  the 
transact  ion,  or  claim  from  the  guardian  the  value  of  the  land 
contracts,  at  bis  election. 


APPOINTMENT  OF  GUARDIAN.  ^45 

A  guardian  acting  within  the  scope  of  his  powers,  is  bound 
only  to  fidelity,  and  ordinary  diligence  and  prudence,  in  the 
execution  of  his  trust.  And  his  acts,  in  the  absence  of  fraud, 
will  be  liberally  construed. 

A  guardian  is  not  responsible  for  open  propositions  made  by 
him,  in  a  preliminary  talk  or  friendly  conversation,  before  he 
assumes  the  duties  of  his  trust.  Nor  is  his  surety  liable  for  the 
conversations,  or  open  propositions  of  his  principal,  before  he 
became  his  surety.  The  liability  of  a  guardian  and  his  sureties, 
are  simultaneous  in  their  commencement,  and  coextensive  in 
their  object  and  duration. 

A  guardian  has  no  authority  to  make  any  improvements  on 
the  land  of  his  ward  without  the  authority  of  the  Court.  If 
he  does  so,  and  advances  the  amount  out  of  his  own  pocket, 
he  cannot  recover  it  from  his  ward.  Hassard  v.  Rowe,  11  Bar- 
bour, 22. 

Where  special  authority  had  been  given  to  a  guardian  to 
cancel  a  bond  and  mortgage,  on  specific  counter  security  being 
executed,  and  he  had  done  the  former,  without  receiving  the  lat- 
ter, it  was  held  that  his  authority  was  conditional,  and  that  the 
discharge  so  executed  by  him  was  void,  and  did  not  protect 
subsequent  mortgagees,  without  actual  notice,  against  the  claim 
of  the  infants,  the  condition  not  having  been  performed.  Swart- 
hout  v.  Curtis,  1  Seld.  301. 

A  similarly  strict  view  was  held  in  Gale  v.  Wells,  12  Barb. 
84,  where  a  promissory  note  signed  by  the  ward  as  surety  for 
the  guardian's  debt,  soon  after  the  former  came  of  age,  was  held 
to  be  void  by  a  majority  of  the  judges  in  the  first  district ;  the 
holders  of  that  note  having  been  aware  of  the  previous  relations 
of  those  parties ;  Edwards,  J.,  however,  dissenting,  on  the  ground 
that  the  ward,  being  of  age,  was  competent  to  contract,  there 
being  no  evidence  of  actual  fraud. 

Where  a  guardian  had  been  appointed  by  the  Surrogate 
under  the  provisions  of  the  Eevised  Statutes  above  cited,  and 
the  proceedings  had  been  regular,  it  was  held  that  the  exercise 
of  the  Surrogate's  jurisdiction  could  not  be  impeached  collater- 
ally, and  that  a  suit,  in  order  to  remove  such  guardian  on  the 
ground  of  fraud  in  the  original  proceedings,  could  not  be  main- 
tained, but  that  the  proper  course  was  to  make  a  fresh  applica- 
tion to  the  Surrogate  to  vacate  the  previous  proceeding.  Dutton 
v.  Dutton,  8  How.  99. 
10 


146  APPOINTMENT  OF  GUARDIAN 

In  cases  where  the  infant  is  seized  of  an  undivided  share  of 
lands,  sought  to  be  partitioned  by  the  other  parties  interested, 
the  general  guardian  possesses  peculiar  and  extensive  powers 
of  concurring  therein,  or  in  a  sale  for  such  purposes  on  behalf 
of  the  infant,  under  the  provisions  of  the  Eevised  Statutes  in 
this  respect.  See  this  subject  fully  noticed,  under  the  head  of 
Partition. 

§  52.    Guardian  ad  litem. 

The  relations  and  duties  of  a  general  guardian  having  thus 
been  shortly  considered,  though  in  strictness  extraneous  to  the 
subjects  treated  of  in  the  present  volume,  the  question  as  to 
the  appointment  of  a  guardian  ad  litem,  remains  to  be  considered, 
which  forms  the  subject  of  special  provision  in  the  Code,  and  is 
a  necessary  concomitant  of  proceedings  under  that  measure,  in 
all  cases  where  infants  are  parties  to  those  proceedings. 

The  guardian  ad  litem  is  an  officer  specially  appointed  by  the 
court,  to  take  charge  of  the  interests  of  any  infant  party,  whether 
plaintiff  or  defendant.  The  sections  of  the  Code  in  reference  to 
this  subject,  are  Nos.  115  and  116,  which  run  as  follows  : 

§  115.  When  an  infant  is  a  party,  he  must  appear  by  guardian,  who 
may  be  appointed  by  the  court  in  which  the  action  is  prosecuted,  or 
by  a  judge  thereof,  or  a  county  judge. 

§  116.  The  guardian  shall  be  appointed  as  follows: 

1 .  When  the  infant  is  plaintiff,  upon  the  application  of  the  infant,  if 
he  be  of  the  age  of  fourteen  years,  or,  if  under  that  age,  upon  the  appli- 
cation of  his  general  or  testamentary  guardian,  if  he  has  any,  or  of  a 
relative  or  friend  of  the  infant.  If  made  by  a  relative  or  friend  of  the 
infant,  notice  thereof  must  6rst  be  given  to  such  guardian,  if  he  has 
one  ;  if  he  lias  none,  then  to  the  person  with  whom  such  infant  resides. 

'2.  When  the  infant  is  defendant,  upon  the  application  of  the  infant, 
if  he  be  of  the  age  of  fourteen  years,  and  apply  within  twenty  days 
after  the  service  of  the  summons.  If  he  be  under  the  age  of  fourteen, 
or  neglect  so  to  apply,  then  upon  the  application  of  any  other  party  to 
the  action,  or  of  a  relative  or  friend  of  the  infant,  after  notice  of  such 
application  being  first  given  to  the  general  or  testamantary  guardian 
of  Bttch  infant,  if  he  has  one  within  this  State ;  if  he  has  none,  then 
to  the  infant  himielf,  if  over  fourteen  years  of  age  and  within  the  State, 
or,  if  under  thai  age  and  within  the  State,  to  the  person  with  whom 
Bucn  infant,  reaidi   ■ 


APPOINTMENT  OF  GUARDIAN.  1 47 

The  latter  of  these  sections  is  considerably  modified  by  the 
two  last  amendments.  In  the  act  of  1849,  the  application  for 
the  appointment  of  the  guardian  of  an  infant  plaintiff  might,  if 
under  fourteen,  be  made  by  any  other  party  to  the  suit.  These 
words  are  now  stricken  out,  and  the  power  of  application  given 
instead  to  the  general  or  testamentary  guardian,  if  any  ;  and  the 
provisions  as  to  the  notice  to  be  given,  if  the  application  be 
made  by  a  relative  or  friend,  in  any  case,  or  by  a  party  to  the 
action,  in  the  case  of  an  infant  defendant,  are  likewise  new. 

In  the  measures  of  1848  and  1849,  the  applications  for  this 
purpose  were  expressly  directed  to  be  made  by  petition,  which 
word  is  now  stricken  out,  and  the  general  term  application 
substituted.  It  seems  to  follow,  as  a  necessary  consequence, 
that  this  proceeding  may  now  be  taken  by  motion  in  all  cases  ; 
and  such  might  very  probably  be  the  construction  adopted,  with 
regard  to  the  appointment  on  behalf  of  an  infant  defendant, 
where  the  substantive  facts  in  relation  to  the  infant's  interest  in 
the  subject-matter  in  controversy  appear  already  on  the  plead- 
ings, and  the  facts  in  relation  to  the  actual  appointment,  and 
its  preliminaries,  are  merely  collateral,  and  may,  therefore,  with 
propriety  be  shown  by  affidavit.  The  form  of  application  by 
petition  may,  however,  be  adopted  under  any  circumstances; 
and  it  seems  by  far  the  most  expedient  in  all,  especially  when 
the  appointment  is  made  on  behalf  of  an  infant  plaintiff,  and 
therefore  before  suit  commenced,  rendering  it  necessary  that  the 
facts  in  relation  to  the  infant's  interest  should  be  substantively 
shown,  in  order  to  form  a  groundwork  for  any  order  at  all  in 
the  matter.  See  this  question  more  fully  considered  under  the 
head  of  Interlocutory  Proceedings.  See  also  the  Eules  of  the 
Supreme  Court,  as  below  cited. 

The  form  of  a  petition  for  this  purpose  will  be  found  in  the 
Appendix,  being  substantially  the  same  as  that  under  the 
former  practice. 

Similar  provisions  to  those  above  cited  are  contained  in  title 
II.,  chap.  VIII.,  part  III.  of  the  Revised  Statutes,  2  R.  S.  446 
and  447 ;  they  may,  however,  be  looked  upon  as  mainly  super- 
seded by  those  of  the  Code  now  under  consideration. 

Stringent  restrictions  are  laid  by  the  Supreme  Court  upon 
appointments  of  this  description  under  the  recent  rules.  By 
Rule  53,  it  is  provided  that 


148  APPOINTMENT  OF  GUARDIAN. 

No  person  shall  be  appointed  guardian  ad  litem,  either  on  the  appli- 
cation of  the  infant,  or  otherwise,  unless  he  be  the  general  guardian  of 
such  infant,  or  an  attorney  or  other  officer  of  this  court,  who  is  fully  com- 
petent to  understand  and  protect  the  rights  of  the  infant,  and  who  has  no 
interest  adverse  to  that  of  the  infant,  and  is  not  connected  in  business 
with  the  attorney  or  counsel  of  the  adverse  party.  And  no  person  shall 
be  appointed  such  guardian,  who  is  not  of  sufficient  ability  to  answer  to 
the  infant  for  any  damage  which  may  be  sustained  by  his  negligence  or 
misconduct  in  the  defence  of  the  suit. 

In  Cook  v.  Bawdon,  however,  6  How.  233,  1  C.  R  (N.  S.)  382, 
it  was  held  that  the  restrictions  imposed  by  this  rule,  in  relation 
to  the  guardian  being  of  necessity  the  general  guardian,  or  an 
attorney  or  officer  of  the  court,  are  not  applicable  to  a  guardian 
for  an  infant  plaintiff,  but  only  as  regards  defendants. 

The  guardian  for  an  infant  plaintiff  must,  however,  be  a  re- 
sponsible person,  for  he  is  liable  for  costs,  and  this  should  be 
shown  before  his  appointment. 

If  the  court  clearly  discovers  that  the  interests  of  the  infant 
are  committed  to  a  guardian  who  is  not  likely  to  protect  them, 
he  should  be  removed,  and  a  proper  one  appointed.  Litchfield 
v.  Burwell,  5  How.  341 ;  9  L.  0. 182  ;  ICE.  (N.  S.)  42. 

An  attorney  or  officer  of  the  court,  when  so  appointed  on  be- 
half of  an  infant  defendant,  is  bound  to  act ;  and  must  examine 
into  the  circumstances,  with  a  view  to  making  a  proper  defence, 
when  necessary ;  for  which  services  he  is  to  receive  such  com- 
pensation as  the  court  may  deem  reasonable.     Rule  52. 

Course  on  Appointment  in  Partition.] — The  appointment  of  a 
guardian  ad  litem,  in  partition  cases,  takes  place  under  the  spe- 
cial directions  for  that  purpose,  in  sec.  II.,  title  III.,  chap.  V.,  part 
III.  of  the  llevised  Statutes,  2  11.  S.  317,  under  which  it  is  com- 
petent for  any  party  interested,  to  apply  and  obtain  such  an 
order,  on  ten  days'  notice  served  upon  the  minor,  or  upon  his 
general  guardian,  if  resident  within  the  State,  but  otherwise 
without  notice  ;  such  guardian  to  represent,  and  his  acts  to  bind 
the  minor,  (sec.  3,)  and  to  give  security  as  the  court  shall  direct, 
(sec.  4.)  In  case  no  proper  parties  shall  be  willing  to  become 
security,  the  Court  of  Chancery  might,  in  a  suit,  appoint  its 
own  officer  without  security,  on  notice  to  the  minor  or  his 
guardian  in  all  cases;  Laws  of  1833,  chap.  277:  and  such 
power  is  doubtless  now  exercisable  by  the  Supreme  Court. 


APPOINTMENT  OF  GUARDIAN.  ^49 

Under  Code.] — The  course  pointed  out  by  the  Code  is  so  sim- 
ple and  easy,  that  it  evidently  appears  to  be  the  most  advisable 
in  all  cases,  and  that,  notwithstanding  the  alteration  in  sec.  116> 
above  alluded  to.  The  petition  must,  in  the  first  instance,  be 
duly  signed  and  verified,  and  the  written  consent  of  the  pro- 
posed guardian  to  serve  must  be  subjoined.  What  is  called  the 
usual  affidavit  must  accompany  it,  speaking  to  the  particulars 
required  by  Ruje  53,  and  likewise  as  to  the  solvency  of  the 
guardian  proposed.  See  Cook  v.  Rawdon,  6  How.  233,  1 
C.  R.  (N.  S.)  382,  above  cited.  Where  the  infant  is  plaintiff,  and 
money  is  sought  to  be  recovered,  a  bond,  in  double  the  amount, 
according  to  the  form  prescribed  by  Rule  55,  should  be  prepared, 
and  should  accompany  the  other  papers.  On  these  papers  an 
order  should  be  applied  for  and  entered  in  the  usual  manner. 
The  application  is  almost  necessarily  ex  parte,  and,  under  the 
Rules  as  they  stood  before  the  recent  revision,  the  order  might 
be  entered  by  the  clerk  as  of  course,  under  a  judge's  certificate, 
but  this  course  of  proceeding  is  now  abrogated.  Where,  how- 
ever, there  is  any  contest  or  doubt  on  the  subject  of  the  appoint- 
ment, or  where  the  court  or  judge  applied  to,  thinks  fit  to  pre- 
scribe that  notice  should  be  given,  the  same  course  of  proceed- 
ing must  be  adopted,  and  the  application  be  made,  in  the  same 
manner  as  in  other  motions  in  the  cause. 

The  guardian,  when  appointed  on  behalf  of  a  sole  infant  plain- 
tiff, is  responsible  to  the  defendant  for  the  costs  of  the  suit,  if 
the  latter  prevails.  The  contrary  is  the  case  as  regards  the 
guardian  of  an  infant  defendant,  unless  he  be  specially  charged, 
by  order  of  the  court,  for  some  personal  misconduct  in  the  cause. 
See  2  R.  S.  446  and  447,  sections  2  and  12.  He  may,  however, 
receive  costs  and  expenses  allowed  by  the  court  to  him  out  of 
the  fund,  or  recovered  by  the  infant  in  the  suit — Rule  54 — but, 
beyond  this,  he  cannot  receive  any  money  or  property  belong- 
ing to  the  infant,  or  awarded  to  him  in  the  suit,  without  having 
first  given  security  as  above  referred  to. 

It  is  not  necessary  to  serve  a  copy  of  the  order  appointing  a 
guardian  on  the  opposite  party,  though  it  is  competent  so  to  do. 
The  fact  will  of  course  appear  on  the  pleadings  by  substantive 
allegation,  either  in  the  title  or  otherwise. 

The  guardian  for  an  infant  plaintiff  must  be  appointed  before 
summons  issued.  Where,  accordingly,  such  appointment  had 
been  made,  after  issuing,  but  before  service  of  summons  and 


150  APPOINTMENT  OF  GUARDIAN. 

complaint,  the  latter  were  set  aside  as  irregular.  Hill  v.  Thac- 
ter,  3  How.  407;  2  C.  K.  3. 

A  judgment  against  an  infant  defendant  by  default,  without 
the  previous  appointment  of  a  guardian  ad  litem,  was  set  aside 
on  motion,  without  imposing  terms,  and  with  costs,  in  Kellogg 
v.  Klock,  2  C.  E.  28. 

No  consent  of  a  guardian,  on  behalf  of  infants,  will  render 
valid  a  judgment  against  them,  in  the  absence  of  legal  proof,  or 
any  other  irregular  proceeding  in  the  cause.  Litchfield  v.  Bur- 
well,  above  cited.  Nor  is  the  responsibility  of  the  guardian  to 
the  infant,  any  answer  to  the  objection.  In  the  same  case  it 
was  held,  as  above  noticed,  that,  where  the  court  discovers 
that  the  interests  of  the  infants  are  committed  to  a  guardian 
who  is  not  likely  to  protect  them,  he  should  be  removed,  and  a 
proper  one  appointed. 

Where  a  husband  and  an  infant  wife  sue  in  respect  of  joint 
property,  no  appointment  of  guardian  ad  litem  in  respect  of  the 
latter  is  necessary,  the  husband  appointing  an  attorney  for  both, 
and  being  responsible  for  the  costs.  Cook  v.  Bawdon,  6  How. 
233 ;  1  C.  R  (N.  S.)  382.     See  also  Hulbert  v.  Newell,  4  How.  93. 

Where,  however,  the  suit  is  in  respect  of  the  wife's  separate 
property,  it  would  seem  that  the  reverse  is  the  case.  Cook  v. 
Rawdon,  6  How.  233  ;  1  C.  R  (N.  S.  382,  and  Coitv.  Coit,  6  How. 
53,  as  before  referred  to.  (See  this  subject  heretofore  examined 
under  the  head  of  Parties.) 


INTERLOCUTORY  PROCEEDINGS.  151 


BOOK     IV 

OF    THE    FORMAL    MACHINERY    OF    AN    ACTION. 


§  53.  Preliminary  Remarks. 

Proceedings  in  a  regular  action  may  be  classified  under  two 
general  divisions,  viz. — First,  the  ordinary,  and  Second,  the 
extraordinary:  the  former  incident  to  all  proceedings  without 
distinction;  the  latter  collateral,  and  adoptable  or  not,  at  the 
discretion  of  the  parties. 

The  ordinary  proceedings  in  a  suit  will  not  be  entered  upon 
here,  but  will  be  considered  in  the  following  portions  of  the 
work,  in  due  order;  and,  with  them,  the  essential  characteristics 
of  any  interlocutory  or  extraordinary  applications  that  may  be 
necessary  from  time  to  time,  will  also  be  noticed.  The  pre- 
sent chapter  will  be  exclusively  confined  to  the  mere  formal 
proceedings  incident  to  all  such  applications,  and  also  to  the 
progress  of  the  cause,  in  a  general  point  of  view  only,  without 
regard  to  the  merits,  or  the  particular  proceedings  involved. 

In  most,  if  not  all,  of  the  practical  works  of  a  similar  nature 
to  the  present,  this  dissociation  of  matters  of  pure  form  from 
matters  of  substance,  has  been  more  or  less  attempted,  but  with 
various  differences  in  the  mode  of  arrangement.  In  some,  the 
consideration  of  interlocutory  applications,  in  particular,  is  de- 
ferred to  a  supplemental  chapter:  in  others,  the  same  matter  is 
treated  of  in  an  introductory  form.  Each  method  presents 
certain  relative  advantages.  By  the  one,  the  student  is  enabled 
to  enter  upon  the  regular  march  of  a  suit,  at  once,  without  being 
detained  by  preliminary  considerations;  the  other  places  him 
at  once  in  preliminary  possession  of  the  required  information 
on  various  points,  for  which  he  must  otherwise  be  continually 
looking  forward. 

Allusions  to  different  speeies   of  interlocutory  remedies  or 


152  INTERLOCUTORY    PROCEEDINGS. 

formal  proceedings  occur,  of  necessity,  in  almost  every  page, 
in  treating  of  the  general  progress  of  a  suit ;  and  it  seems, 
therefore,  of  the  two,  the  more  conducive  to  convenience,  to 
introduce  the  necessary  information  as  to  the  forms  required  in 
these  cases,  at  an  earlier  stage  of  the  work. 

Interlocutory  proceedings  may  be  reduced  under  the  two 
general  heads  of  Motions  and  Orders,  and  their  necessary  pre- 
liminaries. The  merely  formal  machinery  of  a  suit  includes 
a  variety  of  subjects  of  general  application.  The  latter  will 
be  taken  first,  and  the  former  treated  of  at  the  conclusion  of  the 
chapter. 

§  54.  Notices,  and  Service  of  Papers. 

Written  notices  to  the  adverse  party  are,  in  the  first  place, 
necessary  in  connection  with  almost  every  proceeding,  in  every 
stage  of  the  cause.  The  essentials  of  such  notices  will  be  treat- 
ed of  hereafter,  in  connection  with  each  subject.  All  must, 
however,  under  sec.  408,  be  in  writing,  and  be  duly  served  on 
the  adverse  party  or  attorney. 

The  mode  of  service  of  notices,  of  whatever  nature,  and 
of  papers  in  the  suit  in  general,  is  thus  prescribed  by  section 
409:— 

§  409.  The  service  may  be  personal,  or  by  delivery  to  the  party  or 
attorney  on  whom  the  service  is  required  to  be  made  :  or  it  may  be  as 
follows : 

1.  If  upon  an  attorney,  it  may  be  made  during  his  absence  from  his 
office,  by  leaving  the  paper  with  his  clerk  therein,  or  with  a  person 
having  charge  thereof;  or,  when  there  is  no  person  in  the  office,  by 
leaving  it,  between  the  hours  of  six  in  the  morning  and  nine  in  the  evening, 
in  a  conspicuous  place  in  the  office  ;  or,  if  it  be  not  open,  so  as  to  admit 
of  such  service,  then  by  leaving  it  at  the  attorney's  residence,  with  some 
person  of  suitable  age  and  discretion. 

2.  If  upon  a  party,  it  may  be  made  by  leaving  the  paper  at  his  resi- 
dence, between  the  hours  of  six  in  the  morning  and  nine  in  the  even- 
ing, with  some  person  of  suitable  age  and  discretion. 

Where,  however,  the  party  has  already  appeared  by  attor- 
ney, service  of  all  papers  whatsoever  must  be  made  on  the  lat- 
ter. The  provisions  of  sec.  417  arc  express  on  the  subject,  as 
follows: 


INTERLOCUTORY   PROCEEDINGS.  153 

§  417.  Where  a  party  shall  have  an  attorney  in  the  action,  the 
service  of  papers  shall  be  made  upon  the  attornejr,  instead  of  the 
party. 

Service  on  the  party  of  the  ordinary  papers  in  a  suit,  after  an 
attorney  has  appeared  for  him,  will  not  be  good.  In  Tripp  v. 
Be  Bow,  5  How.  114,  3  C.  E.  163,  a  notice  of  appeal  served  on 
the  party,  instead  of  the  attorney,  was  decided  to  be  bad,  and 
such  appeal  was  accordingly  held  to  be  a  nullity.  It  was  also 
held  that  the  objection  might  be  taken  advantage  of  at  any 
time,  provided  the  party  served  had  not  appeared  and  answered, 
or  proceeded  in  such  a  manner  as  to  waive  the  defect,  and  give 
the  court  jurisdiction.  The  attorney  of  the  party  must,  of 
course,  be  the  attorney  of  record.  Service  on  a  mere  agent 
will  not  be  available.  See  Weave  v.  Slocum,  3  How.  397 ;  1  C. 
R  105. 

The  following  exception  from  the  above  provision  is  effected 
by  sec.  418 : 

§  418.  The  provisions  of  this  chapter  shall  not  apply  to  the  service 
of  a  summons  or  other  process,  or  of  any  paper  to  bring  a  party  into 
contempt. 

Whenever,  therefore,  a  proceeding  is  of  a  penal  nature,  or 
any  specific  act  is  commanded  or  forbidden  to  be  done,  the 
service  must  be  personal.  In  a  large  proportion  of  these  cases, 
it  may,  however,  be  prudent  to  notify  the  opposite  attorney  also. 

Where  a  defendant  has  not  demurred  or  answered,  service  of 
notices  or  papers,  in  the  ordinary  proceedings  in  an  action, 
need  not,  under  sec.  414,  be  made  upon  him  at  all,  unless  he  be 
imprisoned  for  want  of  bail,  or  unless  a  regular  notice  of  ap- 
pearance has  been  given.  In  this  latter  case,  service  must  be 
made  on  him  or  his  attorney  in  the  usual  manner. 

The  mode  of  service  being  so  clearly  prescribed  by  sec.  409, 
as  before  cited,  it  would  be  useless  to  repeat  the  directions 
there  given.  The  form  of  an  affidavit  of  service  adapted  to 
the  different  states  of  circumstances  mentioned  in  that  section, 
will  be  found  in  the  Appendix.  Service  may  also  be  proved 
by  the  admission  of  the  attorney,  to  procure  which  is  an  usual 
and  convenient  practice.  One  signed  by  the  party  would  also 
be  valid,  but  is  less  unobjectionable,  inasmuch  as  the  court 
cannot  take  judicial  notice,  but  may,  on  the  contrary,  require 
actual  proof  of  his  signature. 


154  INTERLOCUTORY   PROCEEDINGS. 

In  order  to  the  due  regularity  of  service  on  a  clerk,  or  person 
in  charge,  it  should  be  ascertained  that  the  attorney  is  absent 
from  his  office  at  the  time,  as,  if  not,  it  may  be  questionable 
whether  service  upon  any  other  party  will  be  strictly  regular. 
It  is  clear  that  a  notice  cannot  be  properly  served  when  the 
office  is  not  open,  by  passing  it  under  the  door,  or  otherwise,  and 
clear  also  that  service  upon  a  clerk,  or  person  in  charge,  is  not 
regular,  if  made  elsewhere  than  in  the  office  itself.  The  limita- 
tions as  to  hours,  in  cases  of  service  at  the  residence  of  either 
party  or  attorney,  should  likewise  be  carefully  noted.  Although, 
in  strictness,  a  paper  must  be  served  within  due  time,  or  other- 
wise the  service  will  be  null ;  still,  where  due  diligence  has  been 
used,  and  that  service  has  been  rendered  impossible  by  the  act 
of  the  intended  recipient,  the  court  will  not  allow  him  to  take 
advantage  of  his  own  wrong,  and  will  hold  subsequent  service 
at  the  earliest  possible  period,  to  be  regular.  Thus,  in  Falconer 
v.  Ucoppell,  2  C.  R  71,  where,  on  the  last  day  for  serving  an 
amended  answer,  the  defendant  endeavored,  in  office  hours,  to 
make  the  service,  both  at  the  plaintiffs  office  and  dwelling ;  but 
both  were  closed,  and  no  one  could  be  found  to  receive  it,  but, 
on  the  following  day,  the  same  was  served  personally,  with  notice 
of  the  attempted  service  of  the  day  before ;  it  was  held  that,  in 
making  the  best  possible  service,  the  defendant  was. regular,  and 
the  plaintiff  was  fixed  with  the  costs  of  the  motion. 

Of  course  this  doctrine  is  only  adapted  to  extreme  cases,  where 
full  diligence  has  been  used,  and  the  conduct  of  the  other  side 
has  been  evidently  evasive.  Unless  the  moving  party  has  made 
every  possible  effort,  and  fails,  not  from  want  of  any  exertion  of 
his  own,  but  from  the  absence  or  bad  faith  of  the  opposite  party, 
it  would,  on  the  contrary,  be  most  unsafe  for  him  to  rely  on  ob- 
taining relief  of  this  description.  Where  a  paper  has  been  re- 
fused by  an  attorney  as  served  out  of  due  time,  a  subsequent 
service  on  his  clerk,  in  ignorance  of  the  refusal  of  his  principal 
was  held  of  no  avail;   O'Brien  v.  Catlin,  1  C.  K.  (N.  S.)  273. 

In  sec.  415,  provision  is  made  for  the  case  of  a  party  who  has 
appeared  in  the:  action,  but  who  resides  out  of  the  State,  and 
has  no  attorney  within  it.  In  this  case,  the  service  may  be  made 
by  mail,  if  his  residence  be  known  ;  if  not,  on  the  clerk  for  the 
party.  The  last,  clause  is  somewhat  obscure,  and  seems,  in  fact, 
contradictory  to  previous  portions  of  the  Code,  which  expressly 
provide  that,  as  regards  the  summons  on  the  one  hand,  (sec.  128,) 


INTERLOCUTORY   PROCEEDINGS.  155 

or  the  notice  of  appearance  on  the  other,  (sec  130,)  a  place  for 
service  within  the  State  must  be  named  ;  service  at  which  place 
would  doubtless,  under  such  circumstances,  be  held  as  regular ; 
both  generally,  and  under  Kule  5  of  the  Supreme  Court. 

It  is  clear  that  service  on  a  Sunday  is  not  admissible  under 
any  circumstances,  and,  if  made,  will  be  irregular.  See  Pulling  v. 
The  People,  8  Barb.  384 ;  Field  v.  Park,  20  Johns.  K.  140 ;  and 
other  cases  hereafter  cited  in  the  present  chapter  under  s.  46. 

With  a  view  to  the  affording  all  proper  facilities  in  relation  to 
service  of  papers,  Eule  5  of  the  Snpreme  Court  provides  as  fol- 
lows : 

On  process  or  papers  to  be  served,  the  attorney,  besides  subscribing 
or  endorsing  his  name,  shall  add  thereto  his  place  of  residence  ;  and  if 
he  shall  neglect  so  to  do,  papers  may  be  served  on  him  through  the  mail, 
by  directing  them  according  to  the  best  information  which  can  conveni- 
ently be  obtained  concerning  his  residence. 

This  rule  shall  apply  to  a  party  who  prosecutes  or  defends  in  person, 
whether  he  be  an  attorney  of  not. 

See  remarks  in  relation  to  service  by  mail  under  the  next  sec- 
tion. 

It  is  clear  that  when  an  attorney,  or  party  acting  in  person, 
changes  his  residence  pending  the  suit,  he  ought  to  notify  the 
opposite  party,  and  such  is  the  usual  practice. 

When  the  attorney  is  changed  during  the  progress  of  the  ac- 
tion, notice  of  the  substitution  must  of  course  be  served  on  his 
opponent  as  heretofore.  This  notice  must  be  in  writing,  and 
must  give,  the  residence  of  the  substituted  party,  in  compliance 
with  the  above  rule.  No  particular  form  need  however  be  ob- 
served. It  need  not  be  explanatory  as  to  how  the  substitution 
was  effected,  the  bare  fact  being  all  that  is  necessary  to  be 
shown.     Dorlon  v.  Lewis,  7  How.  132. 

§  55.   Service  by  Mail. 

The  above  observations  are  applicable  to  those  cases  in  which 
the  parties  or  attorneys  on  both  sides  reside  in  the  same  place. 
When  this  is  not  the  case,  service  by  mail  becomes  admissible, 
except  as  regards  process  or  papers  to  bring  a  party  into  con- 
tempt.    Sec.  418. 


156  INTERLOCUTORY    PROCEEDINGS. 

The  mode  in  which  service  by  mail  may  be  made,  is  thus 
prescribed  by  sections  410,  411,  and  412 : 

§  410.  Service  by  mail  may  be  made,  where  the  person  making  the 
service  and  the  person  on  whom  it  is  to  be  made  reside  in  different 
places,  between  which  there  is  a  regular  communication  by  mail. 

§  411.  In  case  of  service  by  mail,  the  paper  must  be  deposited  in 
the  post-office,  addressed  to  the  person  on  whom  it  is  to  be  served,  at 
his  place  of  residence,  and  the  postage  paid. 

§  412.  Where  the  service  is  by  mail,  it  shall  be  double  the  time 
required  in  cases  of  personal  service. 

The  cases  in  relation  to  service  of  this  description  are  nu- 
merous. 

In  Schenck  v.  McKie,  4  How.  246,  3  C.  E.  24,  the  following 
principles  are  laid  down : 

1.  That  such  service  must  be  made  by  the  attorney  himself, 
and  that  he  cannot  employ  an  intermediate  agent. 

2.  That  the  paper  must  be  posted  at  the  residence  of  the 
attorney,  and  not  elsewhere ;  properly  addressed,  and  the  post- 
age paid. 

3.  That,  if  these  requisitions  be  duly  complied  with,  the  ser- 
vice will  be  deemed  regular,  and  the  party  to  whom  the  notice 
is  addressed,  will  then  take  the  risk  of  the  failure  of  the  mail. 

On  these  principles,  a  copy  answer  deposited  by  the  agent  of 
the  attorney,  in  a  post-office  in  a  different  town  from  that  in 
which  the  attorney  resided,  was  held  not  to  be  regularly  served, 
and  it  was  decided  that  the  plaintiff  had  a  right  to  enter  up 
judgment  in  the  meantime,  and  to  disregard  its  subsequent 
arrival.  Where,  however,  the  papers,  though  unduly  mailed, 
were  actually  received  within  time  by  the  attorney  for  the  oppo- 
site party,  the  service  was  held  to  be  good.  Peebles  v.  Rogers,  5 
Eow.  208;  3  0.  R.  213.  The  third  of  the  above  principles,  as 
laid  down  in  Schenck  v.  McKie,  was  fully  sustained  by  the  court, 
in  the  subsequent  ease  of  Ghadwick  v.  Brother,  4  How.  283,  in 
which  a  notice  of  adjustment  of  COStfl,  and  the  adjustment  under 
it,  were'  decided  to  have  been  regular,  when  the  former  was 
posted  by  the  defendant's  attorney  in  due  time;  and  this,  not- 
withstanding such  notice  was  not  actually  received  by  the 
plaintiff's  attorney,  until  the  day  after  such  adjustment  had 
taken  place,  owing  to  some  irregularity  on  the  part  of  the  post- 


INTERLOCUTORY   PROCEEDINGS.  157 

office  authorities.  The  same  conclusion  was  come  to  in  Van 
Home  v.  Montgomery,  5  How.  238.  In  Noble  v.  Trotter,  4  How. 
322,  it  was  further  decided  that,  where  a  copy  of  an  answer  had 
been  posted  by  the  defendant's  attorney  on  the  very  last  day 
allowed  for  its  service,  and  after  the  mail  had  left  on  that  day, 
in  consequence  of  which  the  plaintiff's  attorney  did  not  receive 
it  till  two  days  after  the  time  had  expired,  such  service  was 
nevertheless  good :  a  judgment  entered  up,  in  the  meantime,  by 
the  plaintiff's  attorney,  was  accordingly  set  aside.  The  case  of 
Maker  v.  Comstoch,  1  How.  87,  to  the  contrary  effect,  is  over- 
ruled ;  and  the  cases  of  Broivn  v.  Briggs,  1  How.  152  ;  Radcliff  v. 
Van  Benthuysen,  3  How.  67 ;  and  Jacobs  v.  Hooker,  1  Barb.  71. 
under  the  old  practice,  are  cited  in  the  course  of  the  decision, 
in  support  of  the  view  so  taken. 

The  same  doctrine  was  also  distinctly  held  in  Gibson  v.  Mur- 
doch, 1  C.  E.  103,  with  the  addition  that  any  party  taking  judg- 
ment, between  the  expiration  of  the  time  and  the  actual  arrival 
of  the  answer,  would  take  his  order  for  such  judgment  "at  his 
peril,  and  liable  to  be  made  irregular  by  its  subsequently  appear- 
ing that  an  answer  had  been  previously  served  by  putting  it  in 
the  post-office ;"  nor  would  it  seem  that  any  specified  limit  will 
be  imposed  by  the  court  on  the  period  during  which  a  plaintiff's 
remedy  may  thus  be  suspended,  though  probably,  in  an  extreme 
case,  relief  might  be  extended.  The  authority  of  the  last  de- 
cision is  confirmed  by  that  in  Lawler  v.  The  Saratoga  Mutual 
Fire  Insurance  Company,  2  C.  E.  114. 

A  notice  of  appeal  may  be  served,  by  depositing  it  in  the 
post-office,  on  the  last  day  allowed,  so  far  as  regards  the  oppo- 
site party.  Such  service  on  the  clerk  of  the  court  will  not, 
however,  be  in  time,  but  will,  on  the  contrary,  be  irregular. 
The  provisions  in  relation  to  service  by  mail  do  not  apply  to 
the  latter,  by  whom  the  notice  must  be  actually  received,  within 
the  time  allowed  by  sec.  332.  Crittenden  v.  Adams,  3  C.  E.  145  ; 
5  How.  310;  1  C.  E.  (N.  S.)  21.  Eelief  was,  however,  granted 
to  the  party,  under  sec.  173. 

In  Dorlon  v.  Lewis,  7  How.  132,  it  was  held  that  the  rules 
as  to  service  by  mail  were  applicable  to  the  time  to  appeal  as  well 
as  to  other  cases;  and  that  where  notice  of  a  judgment  had  been 
so  served,  the  party  had  double  time  wherein  to  appeal.  An 
appeal  taken  on  the  thirty-first  day  after  the  entry  of  judg- 
ment was  accordingly  sustained,  the  notice  of  that  judgment 


158  INTERLOCUTORY    PROCEEDINGS. 

having  been  served  by  mail,  and  not  personally.  As  a  general 
rule,  however,  it  will  not  be  safe  to  rely  on  this  privilege  in 
practice.  The  doctrine  seems  very  doubtful.  See  subject  con- 
sidered and  cases  cited  hereafter,  under  the  head  of  Appeals. 

In  Dresser  v.  Brooks,  5  How.  75,  it  was  held,  that  service  of 
notice  of  justification,  under  sec.  341,  when  made  by  mail,  must 
be  for  ten,  not  five  days ;  although  the  effect  of  this  construc- 
tion will  be  to  render  service  of  that  nature  practically  impossi- 
ble, without  an  extension  of  the  time  by  order. 

Where  the  defendant's  attorney  has  named  his  place  of  resi- 
dence, on  his  notice  of  appearance,  or  otherwise  as  required  by 
Rule  5,  any  papers  served  on  him  by  mail  must  be  directed  in 
exact  accordance  with  the  address  so  given,  or  the  service  will 
be  void.  The  words  "  place  of  residence"  in  the  rule  in  ques- 
tion must,  in  such  cases,  be  understood  with  reference  to  the 
post-office  to  which  papers  are  to  be  directed.  Roivell  v.  Mc- 
Cormick,  1  C.  R  (N.  S.)  73 ;  5  How.  337.  Service  of  papers 
directed  to  another  post-office  in  the  same  town  was  there  held 
to  be  irregular.  In  Montgomery  County  Bank  v.  Marsh,  11 
Barb.  645,  affirmed  by  the  Court  of  Appeals,  30th  December, 
1852,  it  was  held,  with  reference  to  the  service  of  notice  of  pro- 
test, that,  where  the  notice  had  been  addressed  to  a  party  at  his 
principal  place  of  business,  it  would  be  good,  although  he  resided 
in  another  town  in  which  there  was  a  post-office,  and  his  resi- 
dence was  nearer  to  that  office,  than  to  the  place  to  which  the 
letter  had  been  directed. 

The  principle  of  the  double  time  to  be  allowed  under  sec. 
412,  was  applied  to  the  case  of  an  answer,  served  by  mail,  in 
Washburn  v.  IIerrick,4:  How.  15;  2  C.  R.  2 ;  and  the  same  was 
treated  us  an  admitted  principle,  in  Cusson  v.  Whalon,  5  How. 
302,  1  C.  R.  (N.  S.)  27,  with  reference  to  an  amended  pleading  so 
served.  The  law  laid  down  in  these  cases  seems,  however,  to  be 
questionable  ;  and  in  several  of  the  others  above  cited,  the  plead- 
in"-,  though  received  after  the  expiration  of  the  twenty  days 
allowed  to  answer,  were  mailed  within  that  period.  Service  of 
a  pleading  by  mail,  if  posted  within  the  twenty  days,  is  unques- 
tioni  I ;  but  whether  forty  days'  time  to  answer,  instead 

of  twenty,  may  be  claimed  as  of  right  in  all  cases  where  an 
answer  may  1"'  served  by  mail,  seems  at  least  extremely  doubt- 
ful. S<-c.  I  18  is  express  that  an  answer  must  be  served  within 
twenty  days  after  the  service  of  the  copy  of  the  complaint — a 


INTERLOCUTORY  PROCEEDINGS.  159 

provision  in  direct  conflict  with  the  above,  if  the  view  taken  in 
the  two  cases  in  question  is  to  prevail.  The  true  distinction 
would  seem  to  be  this:  if  the  complaint  is  served  with  the  sum- 
mons, or  personally,  it  would  be  most  imprudent  to  defer  serv- 
ing the  answer  beyond  the  twenty  days  allowed  by  sec.  143.  If, 
on  the  contrary,  the  summons  is  served  alone,  and  the  com- 
plaint is  afterwards  demanded,  and  served,  not  personally,  but 
by  mail,  there  seems  no  reason  why  the  rule  as  to  the  allow- 
ance of  double  time  should  not  then  apply  to  the  service  of  the 
answer.  Dorlon  v.  Lewis,  7  How.  132,  contains  an  "obiter  dic- 
tum11 to  this  effect,  as  follows :  "  Thus,  the  143d  section  declares 
that  a  demurrer  or  answer  must  be  served  within  twenty  days 
after  the  service  of  the  complaint.  The  time  begins  to  run  from 
the  service.  If,  instead  of  serving  the  complaint  personally,  the 
plaintiff  elects  to  serve  it  by  mail,  the  time  which  thus  begins 
to  run  against  the  defendant,  is  forty  days,  instead  of  the  twenty 
days  otherwise  allowed." 

The  omission  to  pay  the  postage  on  a  service  of  this  nature 
would  seem  to  be  a  fatal  defect,  and  that  the  opposite  party 
may  in  such  case  return  the  pleading,  which  will  be  a  nullity. 
Van  Benthuysen  v.  Lyle,  8  How.  312. 

Any  irregularity  in  service,  whether  by  mail  or  otherwise, 
will  however  be  cured,  if  the  paper  in  question  is  retained  and 
acted  upon.  It  should,  in  such  case,  be  returned  forthwith,  and 
within  the  course  of  the  same  day,  at  farthest.  See  cases  to  this 
effect  cited  in  a  subsequent  chapter,  under  the  head  of  Pro- 
ceedings before  Answer.  See,  also,  Georgia  Lumber  Company  v. 
Strong,  3  How.  246  ;  Gilmore  v.  Hempstead,  4  How.  153. 

Substituted  Service  in  certain  Cases.~\ — By  the  recent  statute,  c. 
511  of  the  Laws  of  1853,  it  is  provided,  that  where  it  shall  ap- 
pear by  the  return  or  affidavit  of  any  sheriff,  deputy  sheriff,  or 
constable,  authorized  to  serve  any  process  or  paper  for  the  com- 
mencement, or  in  the  prosecution  of  any  action  or  other  pro- 
ceeding, that  proper  and  diligent  effort  has  been  made  to  serve 
such  paper,  and  that  the  defendant  cannot  be  found,  or,  if  found, 
avoids  or  evades  such  service,  an  order  may  be  made  author- 
izing service  by  leaving  the  paper  at  such  defendant's  house; 
or,  if  admittance  cannot  be  obtained,  by  affixing  a  copy  on  the 
outer-door,  and  mailing  another,  directed  to  such  defendant,  in 
the  post-office  of  the  town  in  which  he  resides ;  on  proof  of 


160  INTERLOCUTORY   PROCEEDINGS. 

which,  the  paper  is  to  be  deemed  served,  and  ulterior  proceed- 
ings may  be  taken,  as  on  personal  service,  but  with,  liberty  for 
the  defendant  to  come  in  and  make  application  for  leave  to  de- 
fend, or  for  such  other  relief  as  the  case  may  require. 

This  enactment  being  new,  no  reported  case  as  yet  appears 
under  its  provisions.  The  main  object  appears  clearly  to  be 
with  reference  to  the  service  of  summons,  and  as  a  species  of 
substitute  for  publication  in  certain  cases;  and  the  subject  has 
already  been  more  fully  considered,  and  the  provision  cited  in 
extenso  under  that  head.  At  the  same  time,  the  statute  clearly 
applies  in  terms  to  other  proceedings,  when  taken  against  a  de- 
fendant, and  when  the  attempt  at  service  has  been  made  by  an 
authorized  officer.  It  seems,  however,  equally  clear,  that  where 
the  service  is  against  a  plaintiff,  or  where  the  attempt  has  been 
made  by  the  attorney,  or  by  his  clerk  or  agent,  in  the  ordinary 
manner,  no  additional  facilities  are  given.  It  is  not  likely, 
therefore,  that  this  provision  will  be  much  acted  upon,  as  regards 
interlocutory  applications. 

§  56.   Comptitation  of  Time. 

The  computation  of  time  in  the  different  proceedings  in  a 
suit,  as  regards  the  service  of  notices,  pleadings,  and  the  per- 
formance of  any  conditions  whatever,  is  thus  specially  provided 
for  by  sec.  407. 

§  407.  The  time  within  which  an  act  is  to  be  done,  as  herein  pro- 
vided, shall  be  computed,  by  excluding  the  first  day  and  including  the 
last.     If  the  last  day  be  Sunday,  it  shall  be  excluded. 

In  Judd  v.  Fulton,  4  How.  298,  10  Barb.  117,  the  practice  of 
the  courts,  with  reference  to  this  section,  is  fully  laid  down  as 
follows  : 

"The  rule  is  well  settled,  that,  in  computing  time,  the  first 
day,  or  the  day  when  the  time  begins  to  run,  is  to  be  excluded. 
[f  the  defendant  bad  been  required  to  do  an  act,  within  thirty 
days  from  the  happening  of  an  event,  which  had  occurred  on 
2Gth  August,  be  could  have  had  the  whole  of  the  thirtieth  day, 
that  is,  of  the  25th  of  September,  for  that  purpose.  But,  if  he 
was  prohibited  doing  an  act  until  after  the  expiration  of  the 
thirty  days,  he  oould  QOt  do  it  until  the  next  day,  that  is,  the 
26th  of  September." 


INTERLOCUTORY   PROCEEDINGS.  IQ\ 

A  notice  of  trial,  served  on  the  9th  for  the  19th  of  the  same 
month,  was  held  to  be  good,  in  Easton  v.  Chamberlain,  3  How. 
412,  and  Dayton  v.  Mclntyre,  5  How.  117,  3  C.  E.  164. 

In  Truax  v.  Clute,  7  L.  0.  163,  the  doctrine  of  the  exclusion 
of  Sunday  was  fully  carried  out  in  practice.  Service  of  an 
affidavit  on  the  12th  of  March,  under  an  order  extending  the 
time  to  do  so  to  ten  days  from  the  first,  was  held  to  be  sufficient ; 
the  11th,  in  strictness  the  last  of  the  ten  days  allowed,  having 
fallen  on  a  Sunday. 

In  Whipple  v.  Williams,  4  How.  28,  it  was  even  held,  that  in 
notices  under  any  statute,  for  less  than  a  week,  Sunday  should 
be  excluded  altogether  from  the  computation.  This  case  is, 
however,  clearly  overruled  by  Easton  v.  Chamberlain,  above 
cited ;  King  v.  Dowdall,  2  Sandf.  131 ;  Bissell  v.  Bissell,  11  Barb. 
96  ;  and  Taylor  v.  Coroiere,  8  How.  385 ;  in  all  of  which  it  is  held, 
that,  where  Sunday  is  an  intermediate  day,  there  is  no  rule  or 
principle  by  which  it  is  to  be  excluded  from  the  computation ; 
though  otherwise,  of  course,  when  it  is  the  last  day  of  the  period. 
In  relation  to  the  nullity  of  any  legal  proceedings  on  a  Sunday, 
see  Pulling  v.  The  People,  8  Barb.  384. 

With  regard  to  the  construction  of  statutes,  the  rule  is  how- 
ever otherwise ;  and  the  act  must  be  done  within  the  time  thus 
provided.  Thus,  where  the  last  of  the  four  days  allowed  to  a 
justice  for  rendering  his  judgment  expired  on  the  following 
Sunday,  a  judgment  rendered  by  him  on  the  Monday  morning 
was  held  to  be  void.  Bissell  v.  Bissell,  11  Barb.  96.  See  also 
Judd  v.  Fulton,  above  cited. 

In  Schenck  v.  McKie,  4  How.  246,  3  C.  E.  24,  it  was  held  that, 
where  additional  time  to  plead  is  granted  by  order,  such  addi- 
tional time  is  irrespective  of  the  date  of  the  order  itself,  and  does 
not  commence  to  run  until  the  time  thereby  extended  would 
have  expired,  had  no  order  been  made. 

The  same  principle  as  to  the  computation  of  time  is  also  spe- 
cially applied  to  the  publication  of  legal  notices  by  sec.  425, 
which  provides  that  the  time,  in  these  cases,  shall  be  computed 
"so  as  to  exclude  the  first  day  of  publication,  and  include  the 
day  on  which  the  act  or  event,  of  which  notice  is  given,  is  to 
happen,  or  which  completes  the  full  period  required  for  publi- 
cation." See  this  principle  applied  to  the  case  of  foreclosure  by 
advertisement,  in  Westgate  v.  Handlin,  7  How.  372. 
11 


162  INTERLOCUTORY  PROCEEDINGS. 

§  57.    Papers  in  Cause — Marking  Folios. 

The  preparation  of  the  papers,  in  a  suit  of  whatsoever  nature, 
is  made  a  subject  of  special  provision  by  Rule  41  of  the  Supreme 
Court,  which  runs  as  follows  : 

The  attorney  or  other  officer  of  the  court  who  draws  any  pleading 
deposition,  case,  bill  of  exceptions,  or  report,  or  enters  any  judgment 
exceeding  two  folios  in  length,  shall  distinctly  number  and  mark  each 
folio  in  the  margin  thereof ;  and  all  copies,  either  for  the  parties  or  the 
court,  shall  be  numbered  or  marked  in  the  margin,  so  as  to  conform  to 
the  original  draft  or  entry,  and  to  each  other.  And  all  the  pleadings 
and  other  proceedings,  and  copies  thereof,  shall  be  fairly  and  legibly 
written ;  and,  if  not  so  written,  the  clerk  shall  not  file  such  as  may  be 
offered  to  him  for  that  purpose. 

There  can  be  no  question  but  that  both  of  these  regulations 
ought  to  be  strictly  observed,  and  that  any  party  who  neglects 
them  does  so  at  his  peril,  though  such  is  too  often  the  case.  On 
the  other  hand,  the  wisdom  of  insisting  on  such  an  objection  is 
somewhat  questionable,  as  it  is  one  of  those  which  the  court 
will  infallibly  disregard,  unless  the  case  be  very  flagrant  indeed. 
See  this  disposition  strongly  evinced  in  Sawyer  v.  Schoonmaker, 
8  How.  198,  where  a  motion  to  set  aside  a  complaint  on  this 
ground  was  denied,  the  defendant's  affidavits  being  open  to  the 
same  objection.  It  was  also  considered  that  the  party  objecting 
should  have  returned  the  papers,  with  the  objections  stated. 

Use  of  Copies,  where  Originals  lost.'] — Under  sec.  422,  a  copy 
of  any  pleading  or  paper,  lost  or  withheld  by  any  person,  may, 
by  authority  of  the  court,  be  filed  and  used  instead  of  the 
■  iiiginal.  An  application  will,  of  course,  be  necessary  under  these 
circumstances,  and,  unless  the  proceeding  be  merely  formal,  the 
opposite  party  will  be  entitled  to  notice,  either  in  the  usual 
form,  or  by  way  of  order  to  show  cause. 

§  58.    Consents,  or  Admissions. 

The  giving  of  consents  or  admissions  is  a  matter  of  frequent 
occurrence  in  the  ordinary  proceedings  in  a  cause,  when  those 
proceedings  are  carried  on  between  the  opposite  attorneys  in  a 
fitting  and  proper  Bpirit.  The  following  provisions  are  made 
upon  the  subject  by  Rule  87  of  the  Supreme  Court: 


INTERLOCUTORY  PROCEEDINGS.  1(53 

No  private  agreement  or  consent  between  the  parties  or  their  at- 
torneys, in  respect  to  the  proceedings  in  a  cause,  shall  be  binding,  un- 
less the  same  shall  have  been  reduced  to  the  form  of  an  order  by  con- 
sent, and  entered  ;  or  unless  the  evidence  thereof  shall  be  in  writing, 
subscribed  by  the  party  against  whom  the  same  shall  be  alleged,  or  by 
his  attorney  or  counsel. 

It  will  be  observed  that  when  such  consent  is  reduced  to  the 
form  of  an  order,  such  order  must  be  entered  with  the  clerk. 
The  mere  signature  of  the  judge,  and  service  of  a  copy  on  the 
opposite  party,  as  in  ordinary  ex  parte  proceedings,  will  not  ac- 
cordingly be  sufficient,  without  such  actual  entry.  To  give  any 
general  forms  for  consents  or  admissions,  will  of  course  be 
impracticable,  as  they  must  necessarily  vary  in  each  particular 
case,  according  to  the  circumstances.  The  only  necessary  remark 
appears  to  be,  that  the  title  of  the  cause  ought  properly  to  be 
prefixed  in  all  cases.  Where,  however,  a  verbal  agreement  be- 
tween the  attorneys  has  been  relied  upon,  and  action  taken  by 
the  opposite  party  in  consequence  of  such  reliance,  the  courts 
will  not  hold  this  rule  to  be  applicable,  but  will  compel  the 
party  who  has  obtained  an  advantage  by  means  of  the  verbal 
stipulation,  to  perform  it  on  his  part.  Montgomery  v.  Ellis,  6 
How.  326. 

§  59.   Undertakings. 

In  various  proceedings  in  the  course  of  a  cause,  undertakings 
by  way  of  security,  are  required  by  the  Code,  or  may  become 
necessary.  As  a  general  rule,  they  must,  under  sec.  423,  be 
filed  with  the  clerk,  unless  the  court  expressly  provides  for  a 
different  disposition  thereof,  or  unless  such  disposition  be  point- 
ed out  by  the  Code.  See  observations  hereafter,  in  connection 
with  the  different  proceedings  to  which  these  documents  relate. 
All,  of  whatever  nature,  must,  under  Eule  72,  be  duly  proved  or 
acknowledged,  in  like  manner  as  deeds  of  real  estate,  before 
they  can  be  received  or  filed.  The  residence  of  the  sureties 
should  appear  on  the  face  of  the  undertaking.  Blood  v.  Wilder. 
6  How.  446. 

§  60.    Affidavits. 

The  due  proof  of  collateral  matters,  either  with  reference  to 
points  of  form,  or  to  the  establishment  of  a  title  to  collateral 


164  INTERLOCUTORY  PROCEEDINGS. 

relief,  is  a  matter  of  continual  necessity,  pending  the  progress 
of  an  action.  This  proof  is  supplied  by  means  of  an  affidavit, 
a  proceeding  of  constant  recurrence. 

Where  an  affidavit  refers  either  wholly  or  partially  to  any 
document,  in  relation  to  which  the  witness  testifies,  it  is  usual, 
and  is  clearly  advisable,  if  not  necessary,  to  identify  that  do- 
cument, by  marking  it  with  some  letter  or  number,  and  referring 
to  that  designation  in  the  affidavit  itself.  If  the  proving  of  the 
document  be  a  matter  of  importance,  it  will  be  prudent  to  add 
to  that  identifying  mark,  the  initials  or  signature  of  the  officer 
before  whom  the  affidavit  is  taken,  and,  in  special  cases,  an 
express  reference  to  the  affidavit  itself,  as  thus:  "This  is  the 
paper  writing  marked  A.,  referred  to  in  the  affidavit  of  B.  C, 
sworn  this         day  of  before  me."     The  document  thus 

becomes  what  is  termed  an  exhibit,  and  may  then  be  read  in 
evidence  with,  and  as  forming  part  of  the  affidavit. 

Several  of  the  more  formal  of  these  documents  will  be  found 
in  different  parts  of  the  Appendix,  in  connection  with  the  pro- 
ceedings to  which  they  relate.  To  give  any  precedent  for 
statements  of  special  facts  in  connection  with  particular  cases, 
would  of  course  be  useless  to  attempt. 

As  a  general  rule,  every  affidavit,  of  whatever  nature,  must 
intelligibly  refer  to  the  proceeding  in  which  it  is  made,  or  it 
will  be  bad  altogether.  The  following  provision  on  the  subject 
is  made  by  sec.  406 : 

It  shall  not  be  necessary  to  entitle  an  affidavit  in  the  action  ;  but  an 
affidavit  made  without  a  title,  or  with  a  defective  title,  shall  be  as  valid 
and  effectual,  for  every  purpose,  as  if  it  were  duly  entitled,  if  it  intelli- 
gibly refer  to  the  action  or  proceeding  in  which  it  is  made. 

In  Pindar  v.  Black,  4  How.  95.  the  principles  of  the  above 
section  were  fully  carried  out,  and  an  affidavit,  entitled  in  a 
cause  which  as  yet  had  no  existence,  and  referring  to  an 
unknown  party,  designated  by  the  title  of  the  "real  defendant," 
under  the  authority  of  sec.  175,  was  received,  as  sufficient  to 
ground  an  order  for  the  arrest  of  such  party. 

Win!'-,  however,  an  affidavit  is  made  in  an  actually  existent 
cause,  the  cornet  and  proper  practice  will  be  to  entitle  it  in 
that  cause,  in  all  cases,  precisely  as  is  necessary  with  reference 
to  Other  proceedings  therein.  The  name  of  the  court,  in  parti- 
cular, ought,  in  every  instance,  to  be  properly  and  correctly 


INTERLOCUTORY  PROCEEDINGS.  165 

stated.  In  Clickman  v.  Clichnan,  1  Comst.  611,  1  C.  E.  98,  3 
How.  365,  it  was  even  doubted  by  the  Court  of  Appeals,  whether 
the  entitling  an  affidavit  in  the  wrong  court,  was  not  a  fatal 
objection  to  its  reception,  notwithstanding  the  provision  above 
cited.  At  all  events,  the  mistake  is  one  so  easily  guarded 
against,  that  no  prudent  practitioner  will  ever  run  the  risk.  In 
Blake  v.  Locey,  6  How.  108,  it  was  held,  on  the  contrary,  that 
the  objection  as  to  an  affidavit  being  wrongly  entitled,  is  un- 
tenable. In  Bowman  v.  SJieldon,  5  Sandf.  357,  10  L.  0.  338, 
this  latter  view  was  supported.  The  test  is  whether  the  affida- 
vit "refers  intelligibly  to  the  action  or  proceeding  in  which  it  is 
made."  If,  too,  the  fact  appears  collaterally,  so  that  the  defend- 
ant could  not  have  been  misled,  the  affidavit  will  be  received. 
In  that  case  the  notice  of  motion  was  correct,  and  the  wrong 
heading  of  the  affidavit  was  clearly  a  clerical  error ;  in  Clickman 
v.  Clickman,  all  the  papers  were  incorrect,  which  distinction  is 
taken  by  Duer,  J.,  in  delivering  his  opinion.  In  the  People  v. 
Dikeman,  7  How.  124,  it  was  considered,  however,  that  the 
above  section  did  not  apply  to  proceedings  on  mandamus,  and 
that,  in  such  cases,  an  affidavit  wrongly  entitled,  or,  as  was  there 
the  case,  entitled  in  a  suit,  when  in  fact  there  was  none  pending, 
could  not  properly  be  received. 

The  affidavit,  when  drawn  up  and  approved  by  the  party 
making  it,  must  be  signed  and  sworn  to  by  him,  before  a  proper 
offieer  for  that  purpose.  By  sec.  49,  art.  II.,  title  II.,  chap.  III. 
of  part  III.  of  the  Eevised  Statutes,  2  E.  S.  284,  the  officers 
pointed  out  for  this  purpose  are,  "  any  judge  of  any  court  of 
record,  any  circuit  judge,  Supreme  Court  commissioner,  commis- 
sioner of  deeds,  or  clerk  of  any  court  of  record;"  and  affidavits 
to  be  used  in  the  Supreme  Court  may  also,  under  that  section, 
be  taken  by  "  any  commissioner  appointed  for  that  purpose  by 
the  justices  of  that  court." 

Affidavits  may  also  be  taken  out  of  the  State,  and  within  the 
United  States,  by  commissioners  of  deeds,  specially  appointed 
for  that  purpose,  under  the  powers  of  the  act  of  10th  April, 
1850,  c.  270  of  Laws  of  1850 ;  and  this  will,  under  ordinary 
circumstances,  be  found  the  most  convenient  way  of  obtaining 
them,  in  these  cases.  It  may  not  be  superfluous,  though  not 
strictly  necessary,  to  remark,  in  this  connection,  that  similar 
provisions  exist  in  the  laws  of  most,  if  not  all,  the  other  States 
in  the  Union ;    and  also,  with  regard  to  proceedings  in  the 


166  INTERLOCUTORY  PROCEEDINGS. 

federal  courts,  that  affidavits  to  be  used  in  those  States  may  be 
taken  before  commissioners,  in  this  and  others,  appointed  by 
the  proper  authority  for  that  purpose.  In  relation  to  taking- 
affidavits  out  of  the  State,  see  infra,  at  close  of  present  section. 
Although  great  latitude  is  given,  as  above  noticed,  as  regards 
the  entitling  of  affidavits,  the  same  is  not  the  case  with  refer- 
ence to  the  jurat. 

"When  the  affidavit  is  taken  before  a  commissioner  of  deeds, 
it  is  essential  that  the  venue  should  be  stated,  to  show  that  he 
had  jurisdiction  to  take  it.  If  omitted,  it  will  be  a  nullity. 
Lane  v.  Morse,  6  How.  394.  The  same  rule,  of  course,  holds 
good  as  to  other  officers  whose  jurisdiction  to  administer  an 
oath  is  limited  to  as  place. 

The  signatures  both  of  the  party  and  of  the  officer  taking  the 
affidavit  are  essential,  and,  without  either,  the  document  will  be 
a  nullity.  Vide  Laimbeer  v.  Allen,  2  Sandf.  648,  2  C.  E.  15 ; 
Graham  v.  McCoun,  5  How.  353,  1  C.  E.  (N.  S.)  43 ;  George  v. 
McAvoy,  6  How.  200, 1  C.  E.  (N.  S.)  318,  and  various  other  cases 
subsequently  cited  under  the  head  of  Verification  of  Pleadings. 

The  mere  omission  of  the  date  of  the  jurat  was,  however, 
considered  not  to  be  a  fatal  objection  in  Schoolcraft  v.  TJiompson, 
7  How.  446. 

In  cases  where  the  affidavit  cannot  be  taken  before  one  of 
the  officers  before  mentioned,  or  where  it  is  required  to  be 
sworn  in  some  foreign  country,  it  may  be  taken  before  the 
judge  of  any  court  having  a  seal,  under  sec.  25,  art.  III.,  title 
III.,  chap.  VII.,  part  III.  of  the  Eevised  Statutes,  2  E.  S.  396! 
By  the  statute  in  question  it  is  provided  that  the  caption  must, 
in  this  case,  be  certified  by  such  judge;  and  his  powers,  and 
the  genuineness  of  his  signature,  must  be  further  certified  by 
the  clerk  of  the  court,  under  its  seal,  in  the  manner  specially 
prescribed.  The  above  restrictions  are,  however,  greatly  modi- 
fied, and  great  additional  facilities  given  by  the  recent  statute, 
c.  206  of  1854,  Laws  of  1854,  p.  475,  by  which  it  is  provided 
M  follows: 

§  1.  The  officers  authorized  by  the  fifth  and  sixth  sections  of  chap- 
ter three,  part  second,  of  tin;  Revised  Statutes,  to  take  the  proof  and 
acknowledgment  of  deeds  conveying  real  estate,  and  also  any  other 
consul  or  vice-eonsul  or  minister  resident  of  the  United  States,  appointed 
to  reside  at  any  foreign  port  or  place,  are  hereby  authorized  to  admin- 


INTERLOCUTORY  PROCEEDINGS.  167 

ister  oaths  or  affirmations  to  any  person  or  persons  who  may  desire  to 
make  such  oath  or  affirmation ;  and  any  affidavit  or  affirmation  made 
before  any  such  officer,  and  certified  and  authenticated  as  provided  in 
the  seventh  section  of  said  chapter,  in  respect  to  the  proof  and  acknow- 
ledgment of  a  deed  conveying  real  estate,  may  be  read  in  evidence, 
and  shall  be  as  good  and  effectual,  to  all  intents  and  purposes,  as  if 
taken  and  certified  by  an  officer  authorized  to  administer  oaths,  resid- 
ing in  this  State ;  and  no  other  proof  of  the  official  character  of  such 
officer,  than  the  certificate  annexed  to  such  affidavit  or  affirmation,  shall 
be  required. 

§  2.  This  act  shall  take  effect  immediately. 

Evidence  of  Foreign  Records,  &c.~] — With  reference  to  the  subject 
of  collateral  evidence  in  general,  it  may  be  remarked,  in  passing, 
that  the  practice  in  relation  to  the  due  proof  of  foreign  records, 
&c,  remains  as  heretofore.  The  law  on  the  subject  of  the 
printed  statutes  or  reports,  and  also  to  the  unwritten  law  of 
other  states  or  countries,  is  specially  declared  by  sec.  426  of 
the  Code,  in  accordance  with  the  previous  provision  on  the 
subject. 

It  may  be  a  matter  of  interest  to  notice  that  affidavits,  for  the 
purpose  of  being  used  in  the  courts  in  England,  may  be  sworn 
before  a  British  consul,  or  vice-consul,  under  special  statutory 
authority.     See  this  subject  noticed  in  11  L.  0.  192-224. 


§  61.  Motions  and  Orders — General  Definitions. 

The  above  observations  conclude  that  portion  of  this  chapter 
in  relation  to  the  formal  proceedings  in  a  suit,  as  generally  ap- 
plicable. 

Those  following  bear  more  peculiar  reference  to  the  subject 
of  interlocutory  applications  therein ;  which  applications  must, 
in  all  cases,  be  presented  to  the  court  by  means  of  a  motion, 
and  carried  out,  if  granted,  in  the  shape  of  an  order.  The  fol- 
lowing are  the  definitions  of  these  proceedings,  as  given  by 
sections  400  and  401  of  the  Code. 

§  400.  Every  direction  of  a   court  or  judge,  made  or  entered   in 
writing,  and  not  included  in  a  judgment,  is  denominated  an  order. 
§  401.  An  application  for  an  order  is  a  motion. 


168  INTERLOCUTORY  PROCEEDINGS. 

§  62.  Motions,  General  Classification  of. 

An  order  is,  as  above  stated,  obtainable  on  motion  only.  Mo- 
tions are  again  divisible  into  two  grand  classes,  the  enumerated, 
and  the  non-enumerated. 

Enumerated  Motions^ — With  motions  of  this  class,  the  present 
chapter  has  no  concern,  as  they  cannot  properly  be  looked  upon 
as  of  an  interlocutory  nature,  but  are,  on  the  contrary,  regular 
and  most  important  proceedings  in  the  progress  of  the  case.  As 
such,  they  will  be  treated  of  hereafter,  and  more  especially  under 
the  head  of  Appeals. 

An  enumeration  of  the  questions  falling  under  this  head,  will 
be  found  in  Eule  27  of  the  Supreme  Court. 

Non-enumerated  Motions.] — By  the  same  rule,  it  is  laid  down 
that  "  Non-enumerated  motions  include  all  other  questions  sub- 
mitted to  the  court,  and  shall  be  heard  at  special  term,  except 
where  otherwise  directed  by  law." 

The  large  class  of  applications  falling  within  the  above  defi- 
nition, may  be  classified  as, 

1.  Motions  made  on  notice  to  the  adverse*  party,  and 

2.  Ex  parte  applications. 

And  the  latter  head  is  again  subdivisible  into 

Motions  of  course,  and 

Motions,  ex  parte  at  the  first,  but  involving  a  subsequent  argu- 
ment upon  notice ;  which  latter  species  of  proceeding  is  gene- 
rally carried  out  by  means  of  an  order  to  show  cause. 

Before  entering,  however,  upon  these  different  heads,  it  may 
be  as  well  to  consider,  in  the  first  instance,  the  limits  within 
which,  and  the  officers  by  whom,  motions  in  general  may  be 
entertained. 

§  03.    Where  and  before  whom  Motions  may  be  made. 

The  following  :ire  the  general  provisions  of  the  Code  on  this 
abject,  as  contained  in  sec.  401: 

Motions  may  be  made  in  Hi"  first  judicial  district,  to  a  judge  or  jus- 
tice out  of  court,  except  for  a  new  trial  on  the  merits. 

Motions  must  be  made  within  the  district  in  which  the  action  is  tri- 


INTERLOCUTORY  PROCEEDINGS.  169 

able,  or  in  a  county  adjoining  that  inwhich  it  is  triable,  except  that,  where 
the  action  is  triable  in  the  first  judicial  district,  the  motion  must  be  made 
therein,  and  no  motion  can  be  made  in  the  first  district  in  any  action  tri- 
able elsewhere.  Orders  made  out  of  court  without  notice,  may  be  made 
by  any  judge  of  the  court  in  any  part  of  the  Stale,  and  they  may  also 
be  made  by  a  county  judge  of  the  county  where  the  action  is  triable, 
except  to  stay  proceedings  after  verdict. 

It  will  be  convenient,  and  indeed  necessary  for  practical  pur- 
poses, to  analyze  and  subdivide  the  provisions  contained  in  the 
section  above  cited.  The  following  distinctions  should  therefore 
be  made  between 

1.  Motions  in  the  first  district. 

2.  Motions  elsewhere. 

3.  Motions  made  ex  parte  and  out  of  court,  and, 

4.  Opposed  motions, 

and  which  it  will  be  important  to  bear  in  mind,  in  order  to  avoid 
confusion  on  the  subject.  The  two  former  of  these  heads  will 
be  considered  in  this  section,  the  latter  in  those  following. 

First  District.'] — The  peculiar  characteristics  of  this  district 
are  that,  as  above — 

1.  All  motions  in  actions  there  triable,  must  be  made,  and, 

2.  Motions  in  actions  triable  elsewhere  cannot  be  made  within 
that  district.  This  rule  however  only  holds  good  as  regards 
contested  applications:  as  regards  those  made  "out  of  court, 
without  notice,"  a  judge  of  the  First  District  is  not  by  the  above 
section  denuded  of  his  general  powers,  wherever  the  action  may 
be  triable ;  on  the  contrary,  they  are  expressly  saved,  and  remain 
the  same  as  before.  An  application  for  an  order  of  this  descrip- 
tion, cannot  be  considered  as  "  a  motion"  in  this  aspect  of  the 
question.  The  rule  is  otherwise,  however,  where  notice  in  any 
shape  is  to  be  given  to  the  opposite  party.  Under  these  circum- 
stances, the  application  becomes  a  motion  in  the  most  extended 
sense  of  the  word,  and,  as  such,  is  embraced  within  the  above 
restrictions.  An  order  to  show  cause  falls  too  within  the  same 
category,  as,  though  ex  parte  in  its  inception,  it  becomes  to  all 
intents  and  purposes  a  motion,  and  a  motion  on  notice,  on  the 
return  of  that  order.  It  therefore  cannot  properly  be  granted, 
or,  if  granted,  will  in  effect  be  nugatory.  See  these  principles 
laid  down  by  Edwards,  J.,  in  Baldwin  v.  City  of  Brooklyn,  unre- 
ported, but  noticed  in  Yoorhies'  Code,  note  to  sec.  400. 


170  INTERLOCUTORY  PROCEEDINGS. 

In  Oeller  v.  Hoyt,  however,  7  How.  265,  it  was  held  that  the 
hearing  of  a  motion,  contrary  to  the  above  restriction,  is  not  a 
question  of  jurisdiction,  so  as  to  render  an  order  so  obtained 
"  ipso  facto''1  void.  Any  Supreme  Court  justice,  it  was  there 
ruled,  had  jurisdiction  to  hear  the  motion  and  to  make  the  order, 
"although,  if  objection  were  made,  he  should  not  hear  the  mo- 
tion ;  the  order  when  made  is  the  order  of  the  Supreme  Court.' 
See  also  Blachnar  v.  Van  Inwager,  5  How.  867,  1  C.  E.  (1ST.  S.) 
80;  Hempstead  v.  Hempstead,  7  How.  8.  It  seems  clear  however 
that  it  would  scarcely  be  prudent  to  rest  too  extensively  on  this 
doctrine,  and  that  the  only  safe  course  in  practice  will  be  to  com- 
ply strictly  with  the  directions  of  the  Code  in  this  respect.  The 
motion  in  Geller  v.  Hoyt  was  merely  to  correct  a  clerical  error, 
and  therefore  was  one  in  which  there  was  no  pretence  of  inj  ury 
from  the  informality  of  the  notice.  Where  however  a  ques- 
tion of  real  merits  arises,  there  can  be  no  doubt  that  an  order 
obtained  in  defiance  of  this  section,  though  possibly  not  void, 
would  be  clearly  voidable,  and  voidable  as  of  course,  upon  a 
proper  application. 

Another  important  characteristic  of  the  First  District  is  the 
increased  facility  for  making  motions ;  any  applications  of  that 
nature,  whether  ex  parte  or  contested,  with  the  single  exception 
of  one  for  a  new  trial  on  the  merits,  being  there  cognizable  by  a 
judge,  at  chambers,  or  out  of  court. 

In  the  Superior  Court  and  the  Court  of  Common  Pleas,  this 
principle  is  carried  out  to  its  full  extent;  and  the  judges,  sitting 
at  chambers,  hear  all  motions,  without  distinction.  In  the 
Supreme  Court,  however,  it  is  usual  to  confine  the  chamber 
business  to  the  less  important  class  of  applications,  and,  as  a 
general  rule,  to  hear  such  as  are  opposed  at  the  Special  Term, 
for  which  purpose  a  special  order  has  been  made.  A  note,  simi- 
lar to  a  note  of  issue,  is  required  to  be  filed  in  these  cases.  A 
regular  calendar  of  the  motions  so  noticed,  is  made  out,  and 
they  are  regularly  called  as  they  stand  on  that  calendar. 

A  county  judge  has  no  power  whatever  to  make  an  injunc- 
tion order,  or  any  other  order,  except  mere  orders  of  court  in 
< -:i  ea  pending  within  this  district.     Eddy  v.  Hoiulett,  2  C.  11.  76. 

Olh'-r  hi: //-/V/.s-.'l  In  these  districts,  the  facilities  for  making 
mol  1  as  to  the  places,  but  diminished  as  to  the 

modi.',  of  making  the  application,  as  follows: 


INTERLOCUTORY   PROCEEDINGS.  171 

1.  A  motion  may  be  made  in  any  county  within  the  district 
in  which  the  action  is  triable ;  or,  in  any  county,  though  in 
another  district,  (the  first  excepted,)  which  adjoins  the  county 
in  which  the  venue  is  laid ;  but, 

2.  A  motion,  on  notice,  cannot  be  made  before  a  judge,  at 
chambers,  or  out  of  court,  or  otherwise  than  "at  Special  Term." 
See  Eule  27.  See,  also,  Bedell  v.  Powell,  3  C.  E.  61,  and  Schenck 
y.  McKie,  4  How.  246 ;  3  C.  E.  24. 

The  affidavits  in  support  of  a  motion,  must  show  affirmatively 
that  it  is  made  in  the  proper  district,  or  it  will  be  denied. 
Schermerhom  v.  Develin,  1  C.  E.  13  ;  Dodge  v.  Pose,  1  C.  E.  123. 

In  Peebles  v.  Rogers,  5  How.  208,  3  C.  E.  213,  it  was  held  that 
the  words,  "the  county  where  the  action  is  triable,"  include 
any  county  in  which,  under  sections  123  to  125,  the  plaintiff  is 
at  liberty  to  have  it  tried.  Under  the  Code  of  1849,  it  was 
doubtful  whether,  when  the  place  of  trial  was  changed  on  spe- 
cial application,  that  change  carried  with  it  a  change  of  venue 
for  other  purposes,  and  particularly  with  reference  to  interlo- 
cutory applications.  (See  this  subject  fully  considered,  and  the 
cases  cited,  in  a  subsequent  chapter,  under  that  head.)  Under 
the  last  amendment  of  sec.  126,  the  point  is  now  no  longer 
doubtful,  it  being  there  expressly  provided  that,  "when  the 
place  of  trial  is  changed,  all  other  proceedings  shall  be  had  in 
the  county  to  which  the  place  of  trial  is  changed."  This  county 
will,  therefore,  now  become  the  county  of  venue  for  all  pur- 
poses, and  will  necessarily  carry  with  it,  where  applicable,  a 
change  of  the  district  for  the  purposes  of  interlocutory  appli- 
cations. 

Where  a  summons  had  been  served,  stating  that  the  com- 
plaint would  be  filed  in  a  particular  county,  it  was  held  that  a 
motion  for  j  udgment  for  not  serving  a  copy  of  the  complaint, 
could  not  be  made  in  another  district,  unless  in  a  county  imme- 
diately adjoining  the  county  named.  Johnston  v.  Bryan,  5  How. 
355 ;  1  C.  E.  (N.  S.)  46 ;  Inglehart  v.  Johnson,  6  How.  80.  Where, 
therefore,  a  county  is  situated  in  the  middle,  and  not  on  the 
borders  of  a  judicial  district,  the  motion  cannot  be  made  out  of 
the  latter. 

The  same  conclusion  is  come  to  in  Blackmar  v.  Van  Imuager, 
5  How.  367;  1  C.  E.  (N.  S.)  80.  It  is,  however,  held  in  that  case, 
that,  though  irregularly  made,  as  being  in  a  wrong  county,  the 
order  on  a  motion,  by  a  judge  of  the  Supreme  Court,  cannot  be 


172  INTERLOCUTORY   PROCEEDINGS. 

treated  as  a  nullity  and  disregarded.  It  is  binding  until  set 
aside,  and  the  party  aggrieved  must  proceed  accordingly.  See 
also  as  to  this  last  point,  Geller  v.  Hoyt,  7  How.  265 ;  Hempstead 
v.  Hempstead,  7  How.  8. 

Where  a  cross  action  had  been  brought,  in  respect  of  matter 
originally  set  up,  by  way  of  defence,  in  one  pending  in  another 
district,  it  was  held  that  the  motion,  for  the  purpose  of  compel- 
ling a  consolidation  of  the  two  proceedings,  could  only  be  made 
in  the  cross  action,  and  in  the  proper  district  in  which  such 
motion  was  cognizable ;  and  an  application  of  that  nature  in  the 
original  proceeding  was  accordingly  denied,  but  without  pre- 
judice to  its  renewal  in  regular  form.  Farmers'  Loan  and  Trust 
Company  v.  Hunt,  1  C.  E.  (N.  S.)  1. 

The  above  local  limitations  are,  however,  exclusively  confined 
to  cases  where  notice  is  required,  and  are  not  applicable  to  or- 
ders of  course.  These,  as  above  noticed,  may  be  made  by  a 
judge  of  the  court  in  any  part  of  the  State. 

County  Judge.] — This  last  class  of  orders  may  also,  as  provided 
by  the  section  now  in  question,  be  made  "  by  a  county  judge 
of  the  county  in  which  the  action  is  triable.  In  addition  to 
which  power,  the  following  further  authority  is  conferred  on 
the  county  judge,  by  sec.  403: 

§  403.  In  an  action  in  the  Supreme  Court,  a  county  judge,  in  addi- 
tion to  the  powers  conferred  upon  him  by  this  act,  may  exercise,  within 
his  county,  the  powers  of  a  judge  of  the  Supreme  Court  at  chambers, 
according  to  the  existing  practice,  except  as  otherwise  provided  in  this 
act.  And,  in  all  cases  where  an  order  is  made  by  a  county  judge,  it 
may  be  reviewed  in  the  same  manner  as  if  it  had  been  made  by  a  judge 
of  the  Supreme  Court. 

In  Trover  v.  Sdvernail,  2  C.  R.  76,  it  was  considered  that  the 
time  to  make  a  case,  on  a  motion  for  a  new  trial,  could  not  be 
extended  by  a  county  judge,  as  involving  a  stay  of  proceedings 
gfter  Verdict.  This  case  seems,  however,  clearly  inconsistent 
with  the  provisions  of  sec.  405,  which  confer  on  the  county 
judge  the  fullest  powers  of  enlarging  the  time  within  Which  any 
proceeding  in  the  action  must  be  had,  except  only  the  time  to 
appeal;  and  also  with  the  general  authority  conferred  by  sec. 
•101.    The  powei  $  officers  to  extend  the  time  to  answer, 

and  also  their  general  powers  under  sec.  29  of  the  Judiciary  Act 


INTERLOCUTORY  PROCEEDINGS.  173 

of  1847,  as  to  motions  made  without  notice,  which  the  court  there 
held  to  be  still  subsisting,  are  fully  asserted  in  Peebles  v.  Rogers, 
5  How.  208,  3  C.  E.  213 ;  and,  in  Otis  v.  Spencer,  8  How.  171,  it 
was  even  held  that  they  possessed  power  to  stay  proceedings 
on  a  judgment  entered  on  a  referees'  report,  a  distinction  beipg 
drawn  between  such  a  judgment,  and  one  entered  on  the  verdict, 
which  would  clearly  fall  within  the  exception  in  sec.  401.  See 
also  Sale  v.  Lawson,  4  Sandf.  718 ;  Bank  of  Lansingburg  v. 
McKie,  7  How.  3'60 ;  and  Conway  v.  Hitchins,  9  Barb.  378.  The 
above  principle  would  seem,  however,  not  to  hold  good  with 
relation  to  ex  parte  orders,  in  cases  triable  in  the  first  district. 
The  order  must  there  be  made  within  that  district,  or  by  a  judge 
of  the  court,  if  applied  for  elsewhere.  A  county  judge  has,  it 
seems,  no  power  to  act  under  these  circumstances.  Eddy  v. 
.Hoivlett,  2  C.  K.  76.  Although  the  power  of  the  county  judge 
to  make  ex  parts  orders,  except  in  cases  triable  in  the  First 
District,  is  thus  almost  unrestricted,  it  is  equally  clear  that, 
where  the  application  is  in  any  manner  contested,  he  has  no 
jurisdiction  at  all.  Thus,  in  Merritt  v.  Shewn,  3  How.  309,  1 
C.  E.  68,  an  ex  parte  order  by  a  county  judge,  giving  leave  to 
defendants  to  file  a  supplemental  answer,  was  decided  to  be 
void  for  want  of  jurisdiction,  on  the  ground  that  he  had  no 
power  to  hear  a  motion,  as  such,  in  an  action  in  the  Supreme 
Court.  Sec.  401  does  not  enlarge  his  powers ;  it  only  gives 
him  authority  to  exercise  those  which,  under  "the  existing 
practice,"  he  possessed  before  the  Code. 

A  similar  conclusion  was  come  to  in  Otis  v.  Spencer,  8  How. 
171,  where  it  was  held  that  an  order,  directing  what  security 
should  be  given  on  appeal  to  the  general  term  of  the  Supreme 
Court,  and  made  by  a  county  judge,  was  void  for  want  of  juris- 
diction. The  powers  of  the  county  judge  do  not  extend  to 
motions  upon  notice ;  Peebles  v.  Rogers,  above  cited ;  see  also 
Truax  v.  Glide,  7  L.  0.  163,  and  likewise  Schenck  v.  McKie,  4 
How.  246,  3  C.  E.  24,  in  relation  to  orders  of  this  nature  in 
general. 

In  Ghubbuck  v.  Morrison,  6  How.  367,  it  was  considered  that 
the  county  judge  of  one  county,  although  that  within  which  the 
applicant  resides,  has  no  authority  to  make  an  order,  in  an  action 
triable  in  another.  In  Peebles  v.  Rogers,  5  How.  208 ;  3  C.  E. 
213,  it  was  held,  on  the  contrary,  that  sec.  401  of  the  Code  does 
not  take  away  the  power  given  to  those  judges,  by  sec.  29  of 


174  INTERLOCUTORY  PROCEEDINGS. 

the  Judiciary  Act  of  1847,  in  those  cases  where  the  motion  is 
made  without  notice.  The  words,  "  the  county  where  the 
action  is  triable,"  in  section  401,  include  any  county  in  which, 
under  sees.  123,  124,  and  125,  the  plaintiff  is  at  liberty  to  have 
the  action  tried.  The  powers  of  the  county  judge  do  not  ex- 
tend, however,  to  motions  upon  notice. 

The  latter  seems  the  sounder,  as  it  is  certainly  the  more 
convenient  view,  especially  with  reference  to  the  saving  of  th 
former  powers  of  the  officer  in  question,  effected  by  sec.  402, 
and  the  general  authority  with  reference  to  orders  for  time 
conferred  by  sec.  405. 

The  jurisdiction  of  the  county  judge,  in  relation  to  these  and 
other  matters,  has  been  already  considered  in  the  introductory 
chapters.  As  in  all  cases  of  a  limited  statutory  authority,  the 
presumption  will  lie  against  that  jurisdiction,  unless  it  be 
made  clearly  apparent.  See  The  People  ex  ret.  Williams  v.  Hul- 
bert,  5  How.  446  ;  9  L.  0.  245  ;  ICE.  (K  S.)  75.  The  fore- 
going observations  are  of  course  applicable  to  the  proceedings 
of  the  county  judge,  in  actions  in  the  Supreme  Court.  In 
those  pending  in  his  own  jurisdiction,  his  powers  are  of  course 
unfettered,  and  he  possesses,  within  the  limits  of  that  jurisdic- 
tion, the  same  general  authority  as  other  judicial  officers. 

In  Griffin  v.  Griffith,  6  How.  428,  it  was  held  that  the  act  of 
the  Legislature,  conferring  the  powers  of  a  county  judge  on  the 
Recorder  of  Troy,  Sess.  Laws  of  1849,  p.  164,  sec.  4,  was 
unconstitutional,  and  all  the  acts  of  that  officer,  as  such,  void.  If 
the  principle  of  this  decision  be  sustainable,  it  of  course  embraces 
the  judges  of  any  other  cities  or  towns,  who  may  claim  or  assume 
to  exercise  jurisdiction  of  this  nature,  by  statute  or  otherwise. 

§  64.  Ex  parte  Motions. 

Proceeding  in  the  order  before  laid  down,  the  first  point  to  be 
idered,  is,  as  to  the  obtaining  of  ex  parte  orders,  without 
notice;   which,  under  sec.  401,  may  be  made  out  of  court,  in  all 
:i  judge  of  the  court.,  in  any  part  of  the  State.    These 
are,  as  before  stated,  of  two  natures,  viz., — orders  of  course,  and 
orders  to  sho  ,  ea  parte  in  the  first  instance,  but  not  final, 

unlet    "n  a  failure  t"  i  how  such  cause  on  the  return. 

'rip-  differenl  circumstances  under  which  orders  of  course  are 
obtainable,  and  should  be  applied  fur,  will  be  considered  here- 


INTERLOCUTORY  PROCEEDINGS.  175 

after,  under  the  heads  of  the  different  proceedings  to  which  they 
reter.  No  notice,  of  any  description,  is  required  ;  nor  is  an 
affidavit  necessary,  in  any  of  these  cases ;  unless,  of  course, 
some  independent  fact  requires  to  be  proved,  as  a  condition 
precedent  to  granting  the  order. 

No  particular  form  is  necessary,  in  relation  to  orders  of  this 
description.  Where  separately  made,  the  title  of  the  cause 
should,  of  course,  be  prefixed;  where  made  on  affidavit,  an 
usual  practice  is  to  add  the  order  at  the  end  of  that  paper,  to 
which,  if  approved,  the  judge  affixes  his  signature.  A  copy  of 
the  order,  and  also  of  the  affidavit,  on  which  it  is  grounded, 
where  such  is  the  case,  must  then  be  served  upon  the  opposite 
party,  whereupon  the  proceeding  is  complete. 

An  application  for  a  writ  of  assistance,  by  the  purchaser 
under  a  judgment  of  foreclosure,  and  who  has  obtained  his  deed, 
and  been  ordered  to  be  let  into  possession,  is  an  ex  parte  order, 
to  which  the  applicant  is  entitled  as  of  right,  without  notice,  and 
without  power  for  the  adverse  party  to  oppose.  A  grantee  of 
the  purchaser  is  similarly  entitled.  New  York  Life  Insurance 
and  Trust  Company  v.  Hand,  8  How.  35. 

Orders  of  this  description  need  not,  in  general,  be  entered, 
nor  need  the  affidavits  be  filed  with  the  clerk ;  (Savage  v.  Relyea, 
3  How.  276  ;  1 C.  R.  42  ;  Vernam  v.  Holbrooh,  5  How.  3  ;)  though 
it  may  often  be  more  prudent  to  do  so. 

That  no  appeal  lies  to  the  general  term,  from  the  decision  of 
a  judge,  granting  or  refusing  an  ex  parte  order,  was  held  in 
Savage  v.  Relyea,  above  cited. 

Orders  made  at  chambers,  upon  notice,  are,  however,  appeal- 
able.    Nicholson  v.  Dunham,  1  C.  R.  119. 

A  number  of  ex  parte  proceedings  are  connected  with  the 
granting  of  provisional  remedies,  of  different  descriptions. 
They  are  all  of  a  special  nature,  and  must  be  grounded  on  affi- 
davits of  the  circumstances ;  the  details  of  which,  and  of  the 
nature  of  such  proceedings  in  general,  will  be  separately  con- 
sidered hereafter,  under  their  proper  heads,  and  forms  given  in 
the  Appendix. 

An  application  to  a  judge  to  vacate  or  modify  his  own  order, 
under  sec.  32-4,  is  also  a  proceeding  of  this  description.  See 
this  subject  hereafter  considered  under  the  head  of  Appeals. 

An  application  to  remove  a  mere  technical  difficulty  in  a 
special  proceeding,  is  addressed  to  the  discretion  of  the  court, 


176  INTERLOCUTORY  PROCEEDINGS. 

and  may  be  made  either  ex  parte  or  on  notice,  as  the  court  may 
direct.     In  re  Patterson,  4  How.  34. 

To  a  certain  extent,  the  taking  of  an  order  by  consent,  may 
be  looked  upon  in  the  light  of  an  ex  parte  motion.  The  mode 
of  proceeding  in  this  case  will  be  found  considered  in  a  subse- 
quent section  of  this  chapter,  under  the  head  of  Orders. 

Extension  of  2'ime.'] — Special  provision  is  made  as  follows,  by 
sec.  405,  in  relation  to  a  large  class  of  orders  of  this  descrip- 
tion, viz.,  those  in  which  the  time  for  taking  different  proceed- 
ings is  extended : 

§  405.  The  time  within  which  any  proceeding  in  an  action  must  be 
had,  after  its  commencement,  except  the  time  within  which  an  appeal 
must  be  taken,  may  be  enlarged,  upon  an  affidavit  showing  grounds 
therefor,  by  a  judge  of  the  court,  or  if  the  action  be  in  the  Supreme 
Court,  by  a  county  judge.  The  affidavit,  or  a  copy  thereof,  must  be 
served  with  a  copy  of  the  order,  or  the  order  may  be  disregarded. 

By  sec.  401  it  is,  however,  provided  that  "  No  order  to  stay 
proceedings  for  a  longer  time  than  twenty  days  shall  be  granted 
by  a  judge  out  of  court,  except  upon  previous  notice  to  the 
adverse  party." 

It  has  been  held  that  the  latter  provision  is  not  applicable  to 
an  order,  enlarging  the  time  to  make  a  case,  or  bill  of  exceptions, 
when  made  by  the  judge  who  tried  the  cause.  Thompson  v. 
Blancliard,  1  C.  E.  105.  Nor  need  such  last-mentioned  order 
be  grounded  on  an  affidavit,  but  may  be  made  by  such  judge  on 
his  own  knowledge.  If,  however,  an  order  of  this  description 
be  made  by  another  judge,  it  must  then,  of  course,  be  grounded 
on  an  affidavit  of  the  facts,  and  a  copy  of  that  affidavit  must  be 
served  in  the  usual  manner.     Same  case. 

In  Mitchell  v.  J  fall,  7  How.  490,  it  was  doubted,  however, 
whether  an  order,  granting  an  indefinite  extension  of  time,  until 
the  decision  of  the  court  had  been  given  on  a  bill  of  exceptions, 
was  good  lor  the  excess  beyond  twenty  days,  though  made  in 
effect  by  the  judge  who  tried  the  cause,  that  order  having  been 
mad';  nearly  I  WO  months  after  the  trial,  and  apparently  ex  parte. 
The  opinion  is,  however,  doubtfully  expressed,  nor  does  the 
point  appeal  to  have  been  directly  raised,  whilst  the  remedy  is 
clearly  Ll  La   the   following  sentence:  "The  safest  and 

best  practice  undoubtedly  is,  when  the  first  order  is  applied  for, 


INTERLOCUTOKY  PROCEEDINGS.  177 

to  make  it  an  order  of  the  court,  which  will  give  it  a  vitality 
commensurate  with  the  necessities  of  the  case." 

An  order,  extending  the  time  for  the  above  purpose,  beyond 
the  twenty  days,  may,  it  would  seem,  be  made  by  any  judge 
other  than  the  one  who  tried  the  cause ;  and,  if  made,  will  be 
good,  as  regards  the  extension  of  time.  See  also  Mitchell  v. 
Hall,  supra.  It  will,  however,  be  void,  in  so  far  as  proceedings 
are  thereby  stayed,  and  may  be  so  far  disregarded.  Huff  v. 
Bennett,  2  Sandf.  703;  2  C.  B.  139.  It  appears  clear,  however, 
that  an  order  extending  time  to  make  a  case  cannot  be  granted 
ex  parte,  after  the  time  originally  allowed  for  that  purpose  has 
run  out.  The  party  must  then  apply  to  the  court  on  notice. 
Doty  v.  Brown,  4  How.  429;  2  C.  K.  3;  Stephens  v.  Moore,  4 
Sandf.  674.  Oakley  v.  Aspinwall,  1  Sandf.  694,  is  authority  that 
the  mere  making  a  case,  or  bill  of  exceptions,  is  not,  of  itself,  a 
stay  of  proceedings,  unless  an  order  be  obtained. 

In  Langdon  v.  Wilkes,  1  C.  B,.  (N.  S.)  10,  it  was  held  that  any 
number  of  orders,  staying  different  proceedings,  might  be  made 
under  sec.  401 ;  though,  collectively,  they  might  stay  the  pro- 
ceedings for  more  than  twenty  days.  See,  however,  decisions 
below  cited.  In  the  same  case,  it  was  held  that  the  affidavits 
on  which  a  mere  stay  is  granted,  need  not  accompany  the  order. 
Such  order  does  not  necessarily  enlarge  the  time  within  which 
the  party  obtaining  it  must  take  proceedings,  on  his  part,  and 
the  Code  only  requires  the  affidavit  to  be  served,  where  that  is 
the  case. 

The  point  as  to  whether  the  time  within  which  an  appeal 
may  be  taken,  can  or  cannot  be  enlarged,  has  been  the  subject 
of  considerable  discussion;  though  it  may  now  be  considered 
as  settled,  that  it  cannot.  See  cases  cited  hereafter,  under  the 
head  of  Appeals. 

The  point,  as  to  the  extent  of  the  power  of  the  Court  to  grant 
ex  parte  extensions  of  time  to  answer,  or  successive  orders  to 
stay  proceedings  in  relation  to  the  same  matter,  has  remained 
doubtful,  and  been  the  subject  of  much  discussion.  In  Wilcock  v. 
Curtis,  1 C.  R.  96,  it  was  considered  that  the  twenty  days'  restric- 
tion, above  noticed,  did  not  apply  to  an  order  extending  the 
time  to  answer,  on  the  ground  that  such  an  order  was  not,  in 
effect,  a  stay  of  proceedings.  This  view  seems  very  questionable. 
A  practice,  however,  sprung  up  and  became  very  prevalent,  of 
obtaining  a  series  of  separate  orders,  each  extending  the  time  to 
12 


178  INTERLOCUTORY  PROCEEDINGS. 

answer  for  twenty  days,  and  thus,  in  effect,  gaining,  by  a  succes- 
sion of  ex  parte  proceedings,  a  longer  period  than  that  allowed 
as  above,  each  particular  order,  nevertheless,  when  obtained,  not 
transcending  that  limitation.  See,  too,  a  similar  view  as  taken 
in  Langdon  v.  Wilkes,  above  cited. 

This  practice  has,  however,  been  distinctly  disapproved,  and 
a  second  application  for  time  has  been,  in  subsequent  cases,  de- 
nied, on  the  ground  that,  in  effect,  it  was  an  indefinite  extension 
of  time  beyond  the  twenty  days,  and  could  only  be  granted  on 
notice.  Anon.,  5  Sandf.  656 ;  Sales  v.  Woodin,  8  How.  349. 
These  cases  maybe  considered  as  settling  the  question,  in  oppo- 
sition to  the  previously  prevalent  practice,  and  the  views  there 
taken  seem,  on  examination,  to  be  unanswerable. 

Although,  in  effect,  a  sta}7  of  proceedings  may  be  actually 
intended  to  apply  to  a  shorter  period  than  twenty  days,  it  can- 
not be  applied  for  in  an  indefinite  form.  An  indefinite  stay  of 
proceedings  until  the  hearing  of  a  motion,  cannot  be  granted  ex 
parte,  or  otherwise  than  on  notice,  or  order  to  show  cause. 
Schenck  v.  McKie,  4  How.  246,  3  C.  R.  24.  See  also  Mitchell  v. 
Hall,  8  How.  490,  above  cited. 

To  be  obtainable  ex  parte,  an  extension  of  time  must  also 
be  applied  for,  before  the  applicant  is  actually  in  default.  If 
delayed  until  that  is  the  case,  it  cannot  then  be  obtained,  unless 
upon  notice,  or  order  to  show  cause.  Stephens  v.  Moore,  4  Sandf. 
674.     See  Doty  v.  Brown,  supra. 

An  agreement,  signed  hj  a  plaintiff  in  person,  extending  the 
time  to  answer,  on  payment  of  part  of  his  demand,  was  held  to 
be  a  valid  and  binding  extension,  and  a  judgment,  taken  by  his 
attorney  within  the  extended  period,  though  apparently  with- 
out knowledge  of  the  extension,  was  set  aside  as  irregular  in 
'  d  v.  Johnson,  5  Sandf.  671. 

Tin-  i  ;'  an  extension  of  time  to  answer,  however  made, 

is  t<>  waive  nil  right  to  object  to  the  complaint,  unless  expressly 
rved.     Bon  man  v.  Sheldon,  .r>  Sandf.  6C7;  10  L.  O.  338. 

It  would  seem  from  Graham  v.  McOoun,  5  How.  353,  1  C.  E. 

<  N.  .'.)  LS,  that  iln:  omission  of  the  jurat  <>n  the  copy  of  an  affi- 

rved  under  the  above  provisions,  will  not  render  the 

irregular;  but  no  prudent  practitioner  will  ever  omit  to 

include  it,  bo  aa  to  make  the  copy  a  complete  one. 


INTERLOCUTORY  PROCEEDINGS.  179 

§  65.    Order  to  show  Cause. 

The  other  ex  parte  proceeding  above  alluded  to,  is  the  order 
to  show  cause,  which,  though  obtainable  out  of  court,  and  with- 
out notice  in  the  first  instance,  is,  in  fact,  only  another  form  of 
giving  notice  to  the  opposite  party,  of  an  adverse  application. 
It  is  peculiarly  applicable  to  those  cases  in  which  a  shorter 
period  of  notice,  than  that  required  in  ordinary  motions,  is 
desirable,  and,  as  such,  is  specially  provided  for  by  sec.  402 ; 
or,  where  an  immediate  stay  of  proceedings  pending  the  dis- 
cussion of  an  interlocutory  question  is  wished  for.  It  must,  of 
course,  be  served  precisely  in  the  same  form  as  an  ordinary 
notice,  and  the  service  proved  in  the  same  manner. 

In  these  cases,  the  affidavits  on  which  the  application  is 
grounded,  should,  in  the  first  instance,  be  drawn  up,  and  appli- 
cation made  thereon  to  a  judge,  out  of  court.  A  sketch  of  the 
order  to  be  asked  for,  will  be  found  in  the  Appendix. 

In  the  first  district,  that  order  may  be  made  returnable  before 
a  judge,  out  of  court;  in  the  others,  it  must  be  so  at  a  special 
term,  within  the  limits  before  prescribed  in  relation  to  motions 
in  general ;  and,  if  a  stay  be  asked  for,  the  return  should,  in 
these  cases,  be  within  twenty  days,  or,  under  the  authority  of 
cases  above  cited,  the  stay  may  be  void,  as  granted  out  of  court 
without  notice. 

In  relation  to  applications  in  this  form,  in  order  to  bring  on 
the  motion  at  an  earlier  period  than  according  to  the  ordinary 
notice,  see  Merritt  v.  Slocum,  below  cited.  In  the  New  York 
Common  Pleas  the  following  restriction  is  imposed  upon  appli- 
cations, with  the  latter  view,  by  Order  of  March  24,  1850 : 

Ordered,  that  orders  to  show  cause  on  non  -  enumerated  motions 
will  not  hereafter  be  granted,  except  upon  affidavit,  showing  the  neces- 
sity of  making  the  time  of  notice  shorter  than  is  required  in  the  Code  • 
and,  where  such  order  is  returnable  on  any  other  day  than  the  first  day 
of  the  special  term,  the  reason  therefor  must  be  stated  in  the  affidavit 
on  which  the  motion  is  founded. 

In  that  court,  therefore,  attention  must  be  paid  to  the  above 
requisites,  in  framing  the  affidavits  where  necessary;  in  the 
others,  this  is  not  essential. 

The  argument,  on  the  return  of  the  order  to  show  cause, 


180  INTERLOCUTORY  PROCEEDINGS. 

assumes  substantially  the  shape  of  that  upon  an  ordinary  mo- 
tion, and  is  disposed  of  as  such. 

It  is  now  expressly  provided  by  Eule  25,  as  amended  on  the 
last  revision,  that,  where  the  motion  is  for  irregularity,  the  irre- 
gularity complained  of  must  be  specified ;  see  below,  under  the 
head  of  Notice  ;  this  of  course  holds  good  as  to  an  order  to  show 
cause. 

It  is  equally  essential,  that  the  papers  intended  to  be  read  on 
the  motion,  should  be  distinctly  referred  to  on  the  face  of  the 
order  itself.  See  observations  on  this  head  in  the  succeeding 
section. 

This  form  of  proceeding,  though  throughout  unquestioned  in 
practice,  was  not  formally  recognized  in  the  Supreme  Court 
Rules  of  1849.  It  is  now  expressly  provided  for,  and  placed 
on  the  same  footing  as  a  motion,  by  the  recent  amendment  in 
Rule  25,  formerly  28. 

In  relation  to  an  order  to  show  cause,  obtained  under  the 
provisions  of  the  Revised  Statutes,  in  certain  cases  of  abate- 
ment of  suit,  see  Williamson  v.  Moore,  5  Sandf.  647.  See  also 
infra ,  under  head  of  Revivor. 

§  66.  Notice  of  Motion. 

We  now  proceed  to  the  consideration  of  motions  in  general, 
brought  on  in  the  ordinary  form,  and  on  the  usual  notice. 

The  period  for  which  notice  must  be  given  is  thus  prescribed 
by  sec.  402 : 

§  402.  When  a  notice  of  a  motion  is  necessary,  it  must  be  served 
eight  days  before  the  time  appointed  for  the  hearing  ;  but  the  court  or 
judge  may,  by  an  order  to  show  cause,  prescribe  a  shorter  time. 

The  service  must,  of  course,  be  made  and  proved  in  the  usual 
manner;  the  papers  served  with  the  notice,  being  also  expressly 
referred  to  in  the  affidavit.  See  heretofore,  under  the  head  of 
Service. 

in  M  ,  nil  v.  Shewn,  6  IIow.  350,  the  words  "court  or  judge" 
in  the  foregoing  section,  were  held  to  mean  the  court  or  the 
judge  before  whom  the  motion  is  to  be  heard;  and  it  was  de- 
cided that  another  judge;,  sitting  at  chambers,  cannot  make  an 
order  to  show  cause  of  the  above  nature.  If  the  hearing  is  to 
be  out  of  court,  the  judge  who  is  to  hear  the  application,  and 
he  alone,  may,  if  lie  thinks  right,  make  such  an  order;  but,  if 


INTERLOCUTORY  PROCEEDINGS.  181 

the  application  is  not  to  be  made  out  of  court,  then  no  judge, 
out  of  court,  possesses  the  power  to  do  so. 

Provision  is  likewise  made  in  relation  to  the  noticing  and 
hearing  of  motions,  by  Eules  32  and  33  of  the  Supreme  Court, 
as  follows : 

Rule  32.  —  Non-enumerated  motions,  except  in  the  first  district, 
shall  be  noticed  for  the  first  day  of  the  term,  or  sitting  of  the  court, 
accompanied  with  copies  of  the  affidavits  and  papers  on  which  the  same 
shall  be  made,  and  the  notice  shall  not  be  for  a  later  day,  unless  suffi- 
cient cause  be  shown,  (and  contained  in  the  affidavits  served,)  for  not 
giving  notice  for  the  first  day. 

Rule  33. — Non-enumerated  motions  made  in  term  time,  at  a  general 
term,  will  be  heard  on  the  first  day /and  Thursday  of  the  first  week,  and 
Friday  of  the  second  week  of  the  term,  immediately  after  the  opening 
of  the  court  on  that  day. 

Motions  in  criminal  cases  may  be  heard  on  any  day  in  term. 

• 

The  notice  of  motion  must  be  served  on  all  parties  to  the 
suit,  who  have  any  interest  in  the  result  of  the  application ;  and 
copies  of  the  affidavits  and  papers,  on  which  such  motion  is 
proposed  to  be  made,  must  be  served  with  the  notice.  Papers 
omitted  to  be  so  served  cannot  be  read.  Where,  however,  a  motion 
is  made  on  the  pleadings  alone,  this  is  not  necessary,  but  a 
simple  reference  to  those  pleadings  will  be  all  that  is  required ; 
Newbury  v.  Newbury,  6  How.  182.  See  also  Darrow  v.  Miller, 
5  How.  247;  3  C.  E.  241.  Nor  will  formal  proof  of  the  exist- 
ence of  the  suit  be  necessary,  that  fact  being  presupposed  by 
the  pleadings  themselves.  See  same  cases,  overruling  Osborn 
v.  Lobdell,  2  C.  E.  77.  In  all  instances,  however,  it  is  essential 
that  the  papers  intended  to  be  used  on  the  motion  should  be 
distinctly  and  positively  indicated  on  the  face  of  the  notice,  or 
order  to  show  cause ;  a  vitally  essential  precaution,  and  one  that 
should  never  be  omitted  under  any  circumstances,  as  the  ad- 
verse party  has  a  clear  and  indisputable  right  to  object  to  the 
reading  of  any  paper  not  so  referred  to,  expressly,  or  by 
unavoidable  implication;  and,  if  taken,  that  objection  must 
prevail.  Where  any  exhibits  are  proposed  to  be  read  or 
referred  to,  they  should  be  indicated  in'like  manner,  and,  if  not 
communicated  already  or  known  to  the  opposite  party,  copies 
should  be  served. 

The  exception  as  to  the  First  District  was  only  formally  in- 


182  INTERLOCUTORY  PROCEEDINGS. 

serted  in  Eule  33,  on  the  last  revision.  Before  that  amendment 
it  was  held,  that  that  rule,  as  it  stood  before,  was  inconsistent 
with  sec.  401  of  the  Code,  and  this  view  was  acted  upon  by  the 
New  York  Common  Pleas  in  Lahey  v.  Cogswell,  3  C.  E.  116. 

Although,  as  regards  the  other  districts,  as  a  general  rule, 
a  notice  of  motion  should  be  given  for  the  first  day  of  term, 
yet,  provided  a  sufficient  excuse  appears  upon  the  moving  pa- 
pers, it  may  be  given  for  a  later  day.      Wliipple  v.  Williams, 

4  How.  28. 

It  is  now  expressly  provided  by  Kule  25,  as  amended  on  the 
last  revision,  that,  "  When  the  motion  is  for  irregularity,  the 
notice  or  order  shall  specify  the  irregularity  complained  of." 
Previous  to  this  amendment,  the  point  was  a  contested  one,  it 
having  been  held  in  Burns  v.  Bobbins,  1  C.  E.  62,  and  Blake  v. 
Locy,  6  How.  108,  that,  where  the  errors  relied  on  were  suf- 
ficiently indicated  on  the  accompanying  papers,  it  was  not  ne- 
cessary to  state  them  upon  the  notice  itself;  the  contrary  con- 
clusion being  come  to  in  Coit  v.  Lambeer,  2  C.  E.  79.  The  rule, 
as  now  amended,  settles  the  question,  and  the  course  recom- 
mended in  the  former  edition  of  this  work  has  now  become  im- 
perative. 

The  above  rule  was  acted  upon,  and  a  motion  on  a  notice 
defective  in  the  above  particular  denied,  in  Bowman  v.  Sheldon. 

5  Sandf.  657,  10  L.  0.  338.  See  also,  Whitehead  v.  Pecare,  9 
How.  35,  and,  likewise,  The  Broadway  Bank  v.  Danforth,  7  How. 
264,  holding  that  when  a  party  returns  a  pleading  on  the  ground 
of  an  insufficient  verification,  he  is  bound  not  merely  to  do  so, 
but  to  point  out  the  alleged  irregularity.  A  party  moving  on 
merely  technical  grounds,  must  see  that  his  own  papers  are  not 
open  to  the  same  objection  as  his  adversary's;  or  his  application 
may  be  refused,  on  that  ground.  Sawyer  v.  Sclioonmaker,  8 
How.  198. 

A  party  moving  on  the  ground  of  irregularity  must  apply  too 
at  the  earliesl  opportunity  ;  he  will  not  be  held,  however,  guilty 
of  laches  in  nol  moving  at  a  special  term  connected  with  a 
circuit,  ai  !  at  which  it  is  not  certain  that  his  motion  can  be 
made;  E  ddy  v.  Wil  ont  9  Now.  3  L 

The  entitling  the  notice  of  motion  in  a  wrong  court  is  a  fatal 
defect,  and  one  thai  cannot  be  amended;   Clichnan  v.  Click- 

Sri,  1  C.  I-'.  91  :  8  How.  365;  I  Comst.  611.  A  contrary  view 
was  held  in  Blah  v.  Locyx  6  How.  108.    See  prior  observation 


INTERLOCUTORY  PROCEEDINGS.  133 

on  the  subject  of  the  entitling  of  affidavits,  which  came  into 
question  in  the  same  cases.  Bowman  v.  /Sheldon,  there  cited  as 
to  the  latter  point,  does  not  apply  to  this  branch  of  the  subject, 
and  the  authority  of  Clickman  v.  Clichnan  is,  of  course,  of 
greater  weight.  The  objection  is  one  that  may  always  be  ob- 
viated. 

In  Northrop  v.  Van  Dusen,  3  C.  E.  140,  5  How.  134,  it  was 
held  that,  where  costs  are  omitted  to  be  asked  for  in  the  notice 
of  motion,  they  cannot  be  given  by  the  court ;  the  usual  words 
asking  for  such  further  order,  &c,  as  the  court  may  deem  meet, 
are  not  sufficient  to  carry  them.  This  easy  precaution  should 
therefore  never  be  omitted. 

In  Bates  v.  James,  1  Duer,  668,  it  was  held  that  a  notice  of 
motion,  once  given,  cannot  be  afterwards  countermanded  by 
the  party  who  has  given  it.  so  as  to  deprive  his  adversary  of 
the  right  to  attend  on  the  day  specified,  and  have  the  application 
dismissed  with  costs.  In  practice,  however,  this  is  rarely  in- 
sisted on,  when  the  countermand  is  made  in  due  time,  and  with 
good  faith. 

As  a  general  rule,  the  notice  of  motion  must  be  served  upon 
every  party  who  has  been  served  or  has  appeared  in  the  case, 
and  is  in  any  wise  interested  in  the  application.  It  would  seem,' 
however,  that,  as  regards  parties  who  have  been  merely  served 
with  process,  and  have  not  appeared,  this  rule  will  not  be  in- 
sisted upon.  Thus,  where  two  defendants  had  been  originally 
served  with  process,  but  neither  had  appeared,  and  one  of  those 
defendants  had  subsequently  removed  from  the  State  to  parts 
unknown,  it  was  held  that  service  on  the  latter  was  not  neces- 
sary, and  an  order,  obtained  by  service  on  the  other,  was  sus- 
tained by  the  Court  of  Appeals,  in  Suydam  v.  Holden,  Court  of 
Appeals,  7  Oct.,  1853. 

A  notice  of  an  application  to  exonerate  the  sheriff  as  bail, 
signed  by  a  person  neither  an  attorney,  nor  a  party  to  the  action, 
and  not  authenticated,  so  as  to  apprise  the  plaintiff  distinctly 
that  the  sheriff  himself  was  seeking  relief,  was  held  not  to  be 
sufficient  notice  of  a  motion  on  the  sheriff's  behalf,  in  Buchnan 
v.  Carnley,  9  How.  180. 

A  form  of  notice  of  motion  will  be  found  in  the  Appendix. 
It  contains  only  the  formal  portions  of  that  proceeding.  The 
part  by  which  the  relief  itself  is  asked,  will  of  course  vary  ac- 
cording to  the  nature  of  that  relief,  and,  as  such,  will  be  noticed 


184  INTERLOCUTORY  PROCEEDINGS. 

hereafter  as  applicable  to  each  individual  proceeding.  As  a 
general  rule,  the  demand  of  relief,  where  grounded  on,  or  aris- 
ing out  of  any  section  of  the  Code,  or  any  other  statutory  pro- 
vision, should  folloAV  the  exact  wording  of  that  provision,  as 
far  as  practicable.  The  demand  for  further  or  other  relief 
should,  under  no  circumstances,  be  omitted.  It  should  not, 
however,  be  relied  on,  to  sustain  matters  extrinsic  to  those 
specially  called  for.  Thus,  the  granting  a  feigned  issue,  as  a 
matter  of  further  relief  on  a  motion  to  set  aside  a  judgment, 
was  considered  as  matter  beyond  the  scope  of  the  general  de- 
mand for  further  relief,  in  Mann  v.  Brooks,  7  How.  449.  See 
likewise  Bellinger  v.  Marlindale,  8  How.  113,  as  to  leave  to  re- 
new a  motion  already  decided. 

In  relation  to  the  general  incidents  of  motions,  and  under 
what  circumstances  they  may  be  held  to  be  noticed,  prema- 
turely on  the  one  hand,  or  too  late  on  the  other,  and  also  in 
what  cases  the  court  will,  or  will  not  interfere  on  interlocutory 
application,  see  hereafter,  in  the  course  of  the  present  chapter, 
under  sec.  68. 

Motions,  in  general,  are  grounded  either  on  the  papers  or  pro- 
ceedings in  the  cause,  or  on  voluntary  affidavits.  "Where,  how- 
ever, the  evidence  of  involuntary  witnesses  is  essential,  that 
testimony  is  procurable  under  the  special  statutory  provisions 
mentioned  in  sec.  69  of  this  chapter,  to  which  the  reader  is  ac- 
cordingly referred. 


§  67.    Petitio?is. 

The  usual  mode  of  making  motions  is  on  affidavit.  They 
may,  however,  be  grounded  on  petition.  Eule  39  of  the  Su- 
preme Court,  provides  on  this  subject  as  follows: 

Motions  in  actions,  made  after  the  commencement  thereof,  may  be 
founded  upon  petition  duly  verified,  or  by  affidavit,  or  by  both,  at  the 
election  of  the  party  making  such  motions,  except  when  otherwise  pro- 
vided by  law. 

To  the  ordinary  applications  in  the  progress  of  a  suit,  the 
proceeding  by  petition  is  inapplicable,  and  the  motion  should, 
in  tl.  grounded  either  on  the  pleadings  or  proceed- 

ings themselves,  or  on  affidavit,  as  before  mentioned.    In  those 


INTERLOCUTORY  PROCEEDINGS.  185 

where  the  relief  is  applied  for  under  a  special  statutory  pro- 
ceeding, petition  is,  on  the  contrary,  the  proper  form.  Under 
certain  circumstances,  it  may  also  be  proper  to  make  application 
in  this  form  in  the  course  of  a  suit,  as,  for  instance,  when  such 
suit  is  sought  to  be  continued  or  revived  against  new  parties, 
under  sec.  121.  See  Williamson  v.  Moore,  5  Sandf.  647,  prescrib- 
ing this  course  as  indispensable,  where  the  application  was 
made  in  a  suit  commenced  before  the  Code.  The  relief  asked 
for  in  such  a  case  being  of  a  direct,  and  not  of  a  collateral 
nature,  cannot  be  properly  obtained  on  a  proceeding  of  a  col- 
lateral description.  The  circumstances  on  which  the  court  acts 
ought,  on  the  contrary,  to  appear  directly  on  the  document 
itself  by  which  relief  is  sought ;  and  a  petition,  filed  with  the 
order,  and  forming  as  it  were  a  component  part  of  it,  is  accord- 
ingly the  more  proper  form  in  these  and  similar  cases.  The 
petition,  when  prepared,  should  be  verified  by  affidavit  of  the 
petitioner,  wherever  practicable,  or,  if  not,  then  by  that  of  his 
agent,  acquainted  with  the  facts  of  the  case ;  the  reason  why 
such  verification  is  made  by  the  agent,  and  not  by  the  principal, 
being  satisfactorily  shown,  precisely  as  hereafter  prescribed  in 
relation  to  the  verification  of  a  complaint.  A  copy  of  the  peti- 
tion, thus  verified,  and  of  any  collateral  affidavits,  if  any,  on 
which  the  application  is  proposed  to  be  grounded,  should  be 
served  on  the  adverse  party,  or,  if  the  petition  arise  out  of 
matter  extrinsic  to  the  pleadings  as  they  stand,  then,  upon 
every  party  interested  in,  or  sought  to  be  affected  by  the  relief 
to  be  granted,  the  usual  form  of  notice  of  a  motion  grounded  on 
that  petition,  being  also  served  at  the  same  time. 

In  Bole  v.  Fellows,  5  How.  451, 1  C.R.(N.S.)  146,  it  was  held  that 
an  order  for  discovery  of  books,  &c,  under  sec.  888,  can  only  be 
applied  for  on  petition :  overruling  a  dictum  in  The  Exchange 
Bank  v.  Monteath,  4  How.  280 ;  2  C.  E.  148,  to  the  contrary 
effect.  See  also  Folletl  v.  Weed,  3  How.  303,  360;  1  C.  R.  65. 
See  this  subject  hereafter  considered  under  the  head  of  pro- 
ceedings between  issue  and  trial,  the  point  being  clearly  settled, 
that  petition  is  the  only  proper  form  of  application  in  such 
cases.     See,  likewise,  Bovell  v.  Clarke,  7  How.  158,  there  cited. 

Special  provision  is  made  by  Rule  38  of  the  Supreme  Court, 
in  relation  to  the  framing  of  orders  on  petitions,  to  the  effect 
that  such  petition  must  be  referred  to  in  the  order,  without 
setting  forth  the  tenor  or  substance  unnecessarily.     To  do  so 


Ig6  INTERLOCUTORY  PROCEEDINGS. 

would  be  clearly  a  work  of  supererogation,  as  the  petition 
should  in  all  cases  be  filed  with  the  order,  and,  as  such,  explains 
itself.  The  same  rule  provides,  that  orders  or  judgments 
granted  on  petitions,  where  no  complaint  is  filed,  may  be  dock- 
eted as  judgments,  where  the  payment  of  money  is  directed,  or 
the  title  to  property  affected  by  them. 

The  formal  constituents  of  a  petition  are  unaffected  by  the 
Code  or  Eules,  and  remain  as  under  the  old  practice.  Those 
constituents  may  be  gathered,  however,  from  the  forms  in  the 
Appendix,  under  the  heads  of  Appointment  of  Guardian  and 
Discovery.  The  petition  should  commence  with  the  title  of  the 
cause,  or  a  description  of  the  matter  in  which  it  is  presented.  It 
must  be  duly  addressed  to  the  court  applied  to,  as  thus: 

To  the  Supreme  Court  of  the  State  of  New  York : 

The  petition  of  A.  B.  (the  above-named  plaintiff,  or  defend- 
ant, if  such  be  the  case,  "  mutatis  mutandis")  respectfully 
sheweth. 

The  allegations  on  which  the  court  is  called  upon  to  inter- 
fere then  follow,  and  the  document  concludes  with  the  prayer 
for  the  relief  sought,  commencing  with  the  words,  "Your 
petitioner,  therefore,  prays,  &c."  This  document  should  be 
signed,  in  all  practicable  cases,  by  the  party  petitioning,  in  the 
presence  of  a  witness.  The  party  signing  must  also  verify  it 
by  affidavit;  and  his  signature  must  likewise  be  proved  by 
the  affidavit  of  the  witness  thereto,  to  be  further  subjoined.  See 
forms  of  these  affidavits  and  general  sketch  of  petition  as  above, 
as  given  in  Appendix  of  Forms. 


§  08.     Opposed  Motions — where  Cognizable. 

Dnder  this  denomination  will  fall  all  applications  whatsoever, 
of  which  notice  has  previously  been  given  under  the  provisions 
befon  d ;  and,  likewise,  the  whole  class  of  orders  to  show 

cause,  on  their  arriving  at  thai  stage  of  the  proceeding  at  which 
cause  is  to  be  shown,  pursuant  to  the  terms  of  the  original 
order. 

Ghambei  or  Special  Term.'] — In  all  other  districts,  except  the 
First,  Hi  I  cription,  as  noticed  in  a  previous  sec- 


INTERLOCUTORY  PROCEEDINGS.  187 

lion  of  this  chapter,  are  only  cognizable  by  a  judge  sitting  at 
special  term,  and  not  otherwise.  In  the  First  District,  however, 
it  "would  seem  that,  under  sec.  401,  any  motions  whatever  can  be 
heard  out  of  court  or  at  chambers,  with  the  one  exception  of  an 
application  for  a  new  trial  on  the  merits.  A  more  restricted 
practice  has,  however,  been  adopted,  one  of  the  distinctions 
drawn,  being  that  between  interlocutory  applications,  and  those 
which  involve  a  decision  of  the  whole  case,  with  the  one  excep- 
tion below  noticed.  Thus,  in  Aymar  v.  Chase,  1  C.  E.  (N.  S.) 
330 ;  12  Barb.  301,  it  was  considered  that  an  order  granting 
judgment  for  want  of  a  reply  could  not  be  made  at  chambers. 
The  only  case,  it  was  there  held,  in  which  a  judgment  can  be 
granted  by  a  judge  out  of  court,  is,  on  an  application  under  sec. 
247,  in  respect  of  a  frivolous  pleading,  where  the  power  is  ex- 
pressly given  to  apply  to  a  judge,  either  in  or  out  of  court.  "  In 
all  other  cases  judgment  can  be  rendered  only  by  the  court, 
when  sitting  as  such,  and  not  by  a  judge  at  his  lodgings,  in  the 
street,  or  even  in  chambers." 

The  provisions  authorizing  motions  to  be  heard  out  of  court, 
as  above,  do  not  either  seem  to  extend  to  proceedings  which 
are  not  strictly  actions  under  the  Code.  Thus,  In  the  matter  of 
H.  Hicks's  Will,  4  How.  316,  2  C.  R.  128,  it  was  decided  that 
the  provisions  of  section  401  do  not  extend  to  authorize  motions 
to  be  heard  at  chambers,  in  suits  existing  at  the  time  the  Code 
passed,  nor  in  special  statutory  proceedings,  as  in  an  appeal  from 
the  Surrogate's  Court,  the  point  there  at  issue. 

A  question  of  this  nature  would  seem,  however,  not  to  be 
positively  jurisdictional,  so  as  to  render  the  order  ipso  facto  void. 
See  Geller  v.  Hoyt,  7  How.  265,  before  cited. 

"With  reference  to  the  applications  specially  excepted  by  the 
Code  from  the  class  of  motions  that  may  be  made  out  of  court, 
in  Duel  v.  Agan,  1  C.  R.  134,  it  was  held  that  a  motion  in  arrest 
of  judgment  cannot  be  made  at  chambers.  It  is  in  the  nature 
of  a  motion  for  a  new  trial,  and  must  be  made  to  the  court 
accordingly. 

In  the  Supreme  Court  for  the  First  District,  the  practice  pre- 
vails to  hear  all  seriously  contested  motions  at  Special  Term, 
and,  as  a  general  rule,  to  take  cognizance  at  chambers  of  those 
only  which  are  unopposed,  or  which  do  not  require  any  length- 
ened discussion.  For  this  purpose,  a  regular  calendar  of  mo- 
tions is  accordingly  made  out  each  month,  and  the  motions 


188  INTERLOCUTORY  PROCEEDINGS. 

entered  on  that  calendar  are  called  and  brought  on  in  their 
order  accordingly.  A  note  of  the  motion  should  accordingly 
be  filed  with  the  clerk  in  these  cases.  The  motion  is  then  placed 
on  the  Special  Term  calendar,  and  brought  on  in  due  course. 
In  the  other  courts  this  rule  does  not  obtain. 

In  the  court  in  question,  every  Saturday  in  term  is  set  apart 
for  the  hearing  of  motions  so  noticed  for  the  Special  Term,  and 
other  days  are  occasionally  appointed  for  the  purpose. 

Superior  Court  and  New  York  Common  Pleas.'] — In  the  New 
York  local  courts,  greater  facilities  are  afforded  for  the  hearing 
of  motions.  In  the  Common  Pleas,  under  the  Eules  of  June 
1848,  and  29th  November  1851,  motions  that  may  be  made 
out  of  court,  and  chamber  business,  will  be  heard  before  a  judge 
at  chambers  daily,  between  10  and  12  A.  M.,  in  the  months  of 
January,  February,  April,  May,  June,  September,  October,  and 
December;  and  from  10  to  11,  during  the  General  Term,  in 
March,  July,  and  November.  Special  terms  for  motions  are 
also,  underthe  provisions  of  the  Eules  of  November  1851,  to 
be  held  on  the  first  Mondays  of  the  months  first  above  referred 
to,  and  likewise,  (except  only  as  regards  the  hearing  of  motions 
for  new  trials,)  on  the  first  Mondays  of  March,  July,  August, 
and  November.  If  the  first  day  of  term  should  not  suffice  for 
these  purposes,  the  hearing  of  such  applications  may,  of  course, 
be  continued  at  the  discretion  of  the  court  until  those  noticed 
for  the  term  have  been  duly  disposed  of.  Appeal  motions  are 
to  be  heard  on  the  Saturday  of  the  General  Term.  See  Eule  4 
of  1848. 

In  the  Superior  Court,  the  arrangements  for  the  hearing  of 
motions  arc,  under  the  late  rules,  still  more  comprehensive. 
The  following  provisions  in  relation  thereto  are  made  by  Eules 
o,  6,  and  7: 

Ri  i.i:  ~).  —  Non-enumerated  motions  will  be  heard  by  one  of  the 
justices,  at  tin;  Special  Term  room  and  the  chambers,  daily,  at  10  A.M., 
throughout  the  year;  except  on  New-Year's  Day,  Good  Friday,  the 
Fourth  <>f  . I  uly,  tin-  day  of  the  Annual  Election,  Thanksgiving  Day,  and 
Christmas.  For  Mich  motions,  and  for  the  purpose  of  making  all  neces- 
sary orders,  and  giving  judgments  in  causes  under  chapter  first  of  title 
i  <>f  the  econd  part  of  the  Code,  a  special  term  will  be  held,  every 
day  during  the  vacations,  at  lo  o'clock  A.M. 

Rule  G.  —  The  justices  designated  to   hold  the  General  Terras  will 


INTERLOCUTORY  PROCEEDINGS.  189 

attend  at  chambers,  daily,  during  their  respective  terms,  from  10  to  11 
A.  M.,  to  dispose  of  ex  parte  applications,  and  of  non-enumerated  mo- 
tions, in  which  all  the  parties  are  present  or  represented.  All  applica- 
tions for  ex  parte  orders,  and  for  a  judgment  upon  failure  to  answer, 
during  the  General  Terms,  must  be  made  before  11  o'clock  A.  M. 

Rule  7. — Appeals  from  all  orders  made  on  non-enumerated  mo- 
tions, will  be  heard  on  each  Saturday  during  the  General  Terms,  at  11 
o'clock,  A.  M.,  and  must  be  noticed  for  that  time. 

The  court,  at  the  conclusion  of  the  June  Term,  will  appoint  General 
Terms,  for  hearing  such  appeals  only,  to  be  held  during  the  vacation. 

General  Term. — It  will  be  seen  that  in  the  above  rules  special 
provision  is  made  for  the  hearing  of  appeal  motions  by  the 
General  Term,  and  that,  in  both  tribunals,  the  Saturday  of 
each  week  is  set  apart  for  that  purpose. 

In  the  Supreme  Court  the  provisions  for  the  hearing  of  mo- 
tions of  this  description  are  less  summary.  Under  Eule  36, 
non-enumerated  motions  to  the  General  Term  are,  as  regards 
the  Supreme  Court  in  general,  without  reference  to  any  pecu- 
liar district,  to  be  heard  on  the  first  day  of  term,  or  on  the 
Thursday  of  the  first  week,  or  Friday  of  the  second  week,  im- 
mediately after  the  opening  of  the  court. 

The  class  of  applications  which  fall  within  the  cognizance  of 
the  General  Terms  of  the  different  courts,  consists  of  appeal 
motions,  as  above  noticed ;  of  motions  relative  to  appeals  from 
judgments,  and  the  proceedings  connected  therewith ;  and  of 
some  few  other  matters,  chiefly  of  statutory  jurisdiction,  such  as 
applications  in  relation  to  the  misconduct  of  an  attorney  or 
counsel,  &c.  The  powers  of  the  judges  sitting  at  General  Term 
are,  however,  if  they  choose  to  extend  them,  of  wider  scope,  as 
was  asserted  in  Drake  v.  The  Hudson  River  Railroad  Company r, 
2  C.  E.  67,  with  reference  to  the  granting  of  an  injunction. 
They  will  rarely,  however,  be  disposed  to  assume  jurisdiction 
in  this  respect.  It  may  be  safely  stated  that,  as  a  general  rule, 
interlocutory  applications  are  primarily  cognizable  by  a  single 
judge  only,  at  Special  Term,  or  at  chambers,  according  to  the 
circumstances. 

General  Remarks. — As  a  matter  of  course,  the  regulations  in 
relation  to  the  hearing  of  motions,  rest  peculiarly  within  the 
discretion  of  the  court,  and  are  changeable,  from  time  to  time, 


190  INTERLOCUTORY  PROCEEDINGS. 

according  to  the  state  of  the  business,  or  the  convenience  of  the 
judges  in  any  peculiar  district. 

Motions  in  criminal  cases  may  be  brought  on  any  day  in 
term ;  and  certain  other  cases,  in  which  the  rights  of  the  public 
are  involved,  arq.also  entitled  to  precedence,  as  will  be  hereafter 
noticed.  The  hearing  of  motions  in  the  Court  of  Appeals  will 
be  considered,  in  the  chapters  devoted  to  the  consideration  of 
the  practice  of  that  court. 

By  sec.  40-1,  the  following  provision  is  made  with  reference  to 
the  possible  inability  of  the  regular  judge  to  hear  a  motion,  at 
the  time  for  which  it  is  noticed. 

"  When  notice  of  a  motion  is  given,  or  an  order  to  show 
cause  is  returnable  before  a  judge  out  of  court,  and,  at  the  time 
fixed  for  the  motion,  he  is  absent  or  unable  to  hear  it,  the  same 
may  be  transferred  by  his  order  to  some  other  judge,  before 
whom  the  motion  might  originally  have  been  made." 

The  same  contingency  would  also  seem  to  fall  within  the 
previous  provisions  made  in  sec.  27,  with  reference  to  justices 
of  the  Supreme  Court : 

"  The  judges  shall  at  all  reasonable  times,  when  not  engaged 
in  holding  court,  transact  such  other  business  as  may  be  done 
out  of  court.  Every  proceeding  commenced  before  one  of  the 
judges  in  the  First  Judicial  District,  may  be  continued  before 
another,  with  the  same  effect  as  if  commenced  before  him." 


§  09.   Opposed  Motions — Course  on  Hearing,  and  Inci- 
dents of  Papers  used  on. 

The  moving  party,  on  opening  his  motion,  can  only  read  the 
affid:  papers  served  with,  his  notice  or  order  to  show 

e,  (Rule  32,)  < >r  those  previously  served,  and  therein  referred 
to.  He  cannot  introduce  evidence,  of  his  intention  to  rely  on 
which  be  ha  iven  due  notice  to  his  adversary.  In  general 

the  evid  used  is  voluntary.     The;  case  of  an  unwilling 

witi.  r    pi  cially  provided  Cor,  and  the  testimony  of 

a  party  standing  under  such  circumstances,  is  procurable  for  the 
pur]  a  motion,  under  special  provisions  contained  in  the 

Revised  Stal  ds  the  Supreme  Court,  and  under  spe- 

itment  for  thai  purpose  in  the  New  York  local  jurisdic- 
tion. 


INTERLOCUTORY  PROCEEDINGS.  191 

The  provision  in  the  Eevised  Statutes  will  be  found  at  2 
E.  S.  554,  sees.  24  and  25,  and  runs  as  follows : 

§  24.  When  there  shall  be  any  motion  or  other  proceeding  in  the  Su- 
preme Court,  in  which  it  shall  be  necessary  for  either  party  to  have  the 
deposition  of  any  witness,  who  shall  have  refused  voluntarily  to  make 
his  deposition,  the  court  may  direct  a  commission  to  be  issued  to  one  or 
more  persons,  inhabitants  of  the  county  in  which  such  witness  resides, 
to  take  his  testimony. 

§  25.  Such  witness'may  be  subpoenaed  to  attend  and  testify  before 
such  commissioners,  in  the  same  manner  as  before  referees,  and  with  the 
like  effect ;  and  obedience  to  such  subpoena  may  be  enforced  in  the 
same  manner. 

The  statutory  provision  in  relation  to  similar  proceedings  as 
regards  the  Superior  Court,  is  contained  in  sec.  3,  chap.  276  of 
Laws  of  1840,  (see  2  E.  S.  316,  in  third  edition,)  and  runs 
thus : 

When  there  shall  be  a  motion  or  proceeding  in  the  s;ud  Court,  in 
which  it  shall  be  necessary  for  either  party  to  have  the  deposition  of 
any  witness,  who  may  be  within  the  jurisdiction  of  said  court,  and  who 
shall  have  refused  to  make  his  deposition  voluntarily,  the  said  court 
may  issue  a  summons,  requiring  such  witness  to  attend  before  a  judge 
thereof,  to  make  his  said  deposition  ;  and  obedience  to  such  summons 
may  be  enforced,  as  in  case  of  a  subpoena  issued  by  said  court. 

By  sec.  4  of  the  same  statute,  the  above  powers  are  likewise 
given  to  the  New  York  Court  of  Common  Pleas  in  like  man- 
ner, and  to  the  same  extent,  as  to  the  Superior  Court. 

The  same  remedy  is  therefore  obtainable  in  all  the  courts  of 
higher  jurisdiction,  though  with  some  differences  in  form.  In 
all  those  courts,  the  motion  must  be  grounded  on  an  affidavit  to 
the  same  effect,  viz.,  that  the  deposition  is  necessary,  and  that 
the  witness  has  refused  to  make  it;  the  fact  that  such  witness  is 
within  the  jurisdiction  being  further  superadded,  when  the  ap- 
plication is  in  the  Superior  Court  or  Common  Pleas.  The  form 
of  order  to  be  applied  for  is,  however,  different  in  the  different 
jurisdictions,  the  examination  taking  place  before  a  judge  in 
the  New  York  tribunals,  and  before  special  commissioners  in 
the  Supreme  Court.  In  the  latter,  a  subpoena  must  be  issued 
and  served  on  the  witness;  in  the  former,  the  order  itself  consti- 
tutes the  process  on  which  his  attendance  is  compellable.     In 


192  INTERLOCUTORY  PROCEEDINGS. 

both,  the  usual  witness's  fee  ought,  as  a  precaution,  to  be  paid  to 
him  at  the  time  of  service.  The  examination  then  proceeds  in 
the  ordinary  form  of  an  examination  ude  bene  esse,"  or  of  that 
of  a  party  before  trial  under  the  Code,  and  the  deposition,  when 
taken,  may  be  used  on  the  motion,  and  should  be  filed  in  like 
manner.  Forms  of  the  affidavit  and  order,  as  applicable  to  both 
classes  of  tribunals,  will  be  found  in  the  Appendix.  The  party 
opposing  the  motion,  is  entitled  to  use  the  papers  served  by  his 
adversary,  the  pleadings,  and  any  previous  proceedings  in  the 
action,  and  likewise  any  papers  previously  served  by  him  upon 
his  adversary,  which  bear  directly  upon  the  question  at  issue. 
He  is  also  entitled  to  bring  in,  and  to  read  on  the  hearing,  any 
affidavits  which  he  may  consider  necessary,  and  may  have  ob- 
tained, in  order  to  rebut  the  case  made  by  his  adversary,  or  to 
strengthen  that  made  out  by  him  in  opposition,  and  likewise 
any  exhibits  there  referred  to.  It  would  seem  also  that,  if  the 
judge  grant  the  permission,  vivd  voce  evidence  may  be  intro- 
duced on  a  motion,  though  the  practice  would  be  highly  incon- 
venient, and  is  rarely,  if  ever,  adopted.  In  general,  matters  sud- 
denly arising  in  the  course  of  the  hearing  of  a  motion,  are  put 
on  the  spot  into  the  form  of  an  affidavit,  and  introduced  accord- 
ingly. 

When  the  opposer's  case  is  closed,  it  is  open  to  the  moving 
party  to  introduce  counter  evidence,  if  he  have  any ;  and  his  lati- 
tude in  this  last  respect  is  clearty  the  same  as  that  of  his  adver- 
sary. If  the  matter  in  the  affidavits  in  opposition  show  a  state  of 
things  of  which  he  was  not  previously  aware,  it  is  competent  for 
him  to  ask  that  the  motion  may  stand  over,  for  some  limited 
period,  to  enable  him  to  bring  evidence  in  reply,  and  likewise 
that  lie  be  furnished  with  copies  of  the  opposing  testimony ;  and? 
if  the  case  be  of  sufficient  importance,  and  the  matter  requiring 
to  be  rebutted  is  clearly  new  matter,  the  application  will,  in  all 
probability,  be  granted,  and  the  above  condition  imposed.  Un- 
der a  State  of  things  calling  for  such  an  interposition  on  the 
pari  of  tin'  court,  an  adjournment  on  that  ground  would  appear 
almost,  if  not  entirely,  a  matter  of  right,  and  the  legislature  has 
madeexpre  provision  for  the  right  of  a  plaintiff  to  introduce 
affidavits  in  reply,  and  oven  for  the  purpose  of  strengthening 
Kith  reference  to  the  provisional  remedies  of 
arrest  and  injunction  by  sec.  205  and  226,  us  hereafter  noticed, 
"ii  considering  those  remedies.    In  general,  however,  the  ori- 


INTERLOCUTORY  PROCEEDINGS.  193 

ginal  statement  and  counter  statement  of  the  parties  suffices  for 
the  purposes  of  an  ordinary  motion,  and  an  adjournment  for  the 
above  purpose  is  a  matter  of  comparatively  rare  occurrence. 

Affidavit  of  Service] — The  moving  party  should  of  course  be 
prepared  with  the  usual  affidavit  of  service  of  the  notice  or 
order  to  show  cause,  and  the  papers  on  which  it  is  grounded, 
unless  he  has  obtained,  or  can  clearly  rely  upon  an  admission  on 
the  part  of  his  adversary.  If  this  precaution  be  neglected,  he 
cannot  take  a  default,  if  the  opposite  party  fail  to  appear,  and 
the  proceeding  may  thus  become  nugatory. 

Default  on  Motion.'] — Where,  on  the  return  of  the  notice  or 
order,  the  opposite  party  "  does  not  appear  to  oppose,  the  party 
making  the  motion,  or  obtaining  the  order,  shall  be  entitled  to 
the  rule  or  judgment  moved  for,  on  proof  of  due  service  of  the 
notice  or  order  and  papers  required  to  be  served  by  him,  unless 
the  Court  shall  otherwise  direct."     Rule  25. 

In  this  case,  the  counsel  obtaining  such  order,  must,  under  Rule 
26,  endorse  his  name  as  counsel,  on  the  paper  containing  the  proof 
of  notice.  If,  however,  the  moving  party  fail  to  bring  on  his 
motion  on  the  day  specified,  it  seems  he  cannot  take  an  order 
on  any  subsequent  day.  Vernovy  v.  Tauney,  3  How.  359.  If, 
on  the  contrary,  the  moving  party  fail  to  appear,  his  adversary 
may  move,  on  a  subsequent  day,  for  a  denial  of  the  motion,  as 
abandoned.  The  doctrine  of  Vernovy  v.  Tauney,  seems,  how- 
ever, doubtful.  Where  the  party  becomes  "entitled"  to  take  an 
order,  under  certain  circumstances,  it  may  well  be  argued  that 
the  mere  delay  to  take  it,  can  scarcely  avail  to  deprive  him  of 
it,  provided  the  subsequent  application  be  made  within  a  rea- 
sonable time  and  in  good  faith.  See  Moffatt  v.  Ford,  14  Barb. 
577,  wherein  the  contrary  doctrine  is  sustained,  with  referncee 
to  a  cause  passed  at  the  circuit. 

It  is  directly  incumbent  on  the  moving  party  to  be  in  attend- 
ance at  the  time  and  place  prescribed  in  the  notice,  and  thereto 
remain  until  his  adversary  appear,  or  the  default  is  taken.  This  is 
an  absolutely  necessary  precaution,  and  one  which  cannot  safely 
be  omitted.  The  usual  practice  of  the  courts  is  to  wait  for  some 
short  time,  generally  half  an  hour,  before  the  order  by  default  is 
granted,  though  this  accommodation  to  the  absent  party  is  not 
a  matter  of  right  but  of  courtesy.  At  the  expiration  of  the 
time  usually  allowed,  the  matter  is  then  mentioned  to  the 
13 


194  INTERLOCUTORY  PROCEEDINGS. 

judge,  the  form  of  calling  the  opposite  party,  (generally  by  the 
crier  of  the  court,)  is  gone  through,  and,  on  his  failing  to  ap- 
pear, the  order  is  taken  as  of  course,  unless,  as  provided  for 
b}T  Rule  25,  the  Court  shall  otherwise  direct.  This  power  the 
judge  possesses  under  any  circumstances,  provided  he  consider 
the  order  applied  for  to  be  objectionable  in  itself,  or  otherwise 
improper  to  be  granted,  either  per  se,  or  without  a  reiterated 
notice  to  the  opposite  party. 

In  case  of  the  failure  of  the  counsel  for  the  moving  party  to 
appear  on  the  return  of  his  motion,  the  opposing  counsel  will, 
after  waiting  the  usual  time,  be  entitled  to  take  an  order  dis- 
missing the  motion,  and  usually  with  costs,  the  ceremony  of  a 
call  and  failure  being  gone  through  as  above  noticed.  If  ap- 
plied for  at  the  time,  no  affidavit  will  be  necessary  on  which  to 
ground  this  application,  the  fact  of  the  counsel's  attendance 
being  patent,  and  within  the  knowledge  of  the  judge.  Should 
the  application  be  delayed,  and  the  motion  to  dismiss  be  made 
on  any  subsequent  day,  it  should  be  grounded  on  an  affidavit, 
proving  the  attendance  on  the  one  hand,  and  the  non-appear- 
ance on  the  other,  at  the  time  appointed. 

With  a  view  to  an  application  of  this  nature,  it  seems  equally 
essential,  for  the  opposing  as  well  as  for  the  moving  counsel  to 
be  in  attendance  at  the  precise  hour  appointed.  If  this  pre- 
caution be  omitted,  neither  party  can  be  assured  but  that  his 
adversary  may  have  been  in  attendance  during  the  period 
when  he  himself  was  absent,  and  that  an  application  to  vacate 
any  order  he  may  take,  may  not  be  made'  and  granted,  on 
proof  of  that  fact. 

The  denial  of  a  motion  by  default,  taken  as  above,  is  no  bar 
to  its  renewal,  on  that  default  being  duly  excused.  Bowman  v. 
Sheldon,  5  Sandf.  657,  10  L.  0.  338. 

( 'ourse  of  Hi  <"'i'"J,  where  both  Parties  apjjear.'} — A  motion,  when 

lUght  on  in  regular  course,  is  heard  and  argued  in  the  usual 

manner;   the   affidavits  on  both    sides,  or  any  other  papers   or 

Oil    which    the   motion    is  grounded,   arc    first    read, 

after  which,  counsel  are  heard  on  bothsides,  insupport,  opposi- 
tion, and  reply,  as  in  other  cases,  the  right  to  commence  and 
i  jument,  resting,  of  course,  with  the  moving  party. 

Incidental  Points.'] — A  motion  must  not  be  made  premature- 


INTERLOCUTORY  PROCEEDINGS.  195 

ly.  Thus,  in  divorce,  a  motion  for  alimony,  pendente  lite,  no- 
ticed before  service  of  a  copy  of  the  complaint,  after  demand, 
was  adjourned,  to  give  the  defendant  time  to  put  in  his  answer ; 
Reese  v.  Reese,  2  C.  R.  81. 

So  likewise  with  reference  to  an  application  to  appoint  a 
committee  of  a  lunatic,  before  a  commission  of  lunacy  has  been 
issued  and  returned.  The  court  possess  no  jurisdiction  to  make 
such  an  order,  however  pressing  may  be  the  circumstances. 
In  re  Payn,  8  How.  220. 

Nor  can  a  motion  be  made  too  late,  under  certain  circum- 
stances, as,  for  instance,  to  strike  out  portions  of  a  pleading  for 
irrelevancy.  See  Rule  40,  of  Supreme  Court,  and  cases  cited 
hereafter  under  the  head  of  Pleading. 

Objections  to  one  pleading  cannot  be  split  up  into  several 
motions — they  must  all  be  taken  at  once,  or  a  second  applica- 
tion will  be  denied.    Desmond  v.  Wool/,  1  C.  R.  49 ;  6  L.  0.  389. 

The  proper  way  of  raising  objections  to  the  imperfect  ser- 
vice of  process,  is  by  motion,  and  not  by  answer  or  demurrer. 
Nones  v.  The  Hope  Mutual  Life  Insurance  Company,  5  How.  96, 
3  C.  R.  161. 

Objections  for  irrelevancy  or  redundancy  also,  can  only  pro- 
perly be  taken  by  motion.  Esmond  v.  Van  Benschoten,  5  How. 
44 ;  Howell  v.  Fraser,  6  How.  221,  1  C.  R.  (N.  S.)  270.  See  the 
above  points  more  fully  considered,  and  other  cases  cited  here- 
after, under  the  different  heads  as  to  pleading. 

When  a  reference  has  been  granted,  and  a  report  obtained 
under  any  order  made  on  motion  or  petition,  that  report  cannot 
be  acted  upon  by  the  court,  until  it  has  been  previously  con- 
firmed, by  motion  at  Special  Term,  or  on  petition.  Gr/fjing  v. 
Slate,  5  How.  205,  3  C.  R.  213.  The  order  for  this  purpose  is, 
however,  a  matter  of  form,  and  is  always  entered  ex  parte,  and 
almost  as  of  course.  See  hereafter,  under  the  head  of  Refer- 
ences. See  likewise  Belmont  v.  Smith,  1  Duer,  675;  11  L.  O. 
216.  The  review  of  a  report,  on  a  collateral  reference,  can  only 
be  obtained  on  motion,  and  not  on  appeal,  though  the  refer- 
ence be  to  carry  a  judgment  into  effect. 

The  court  will  not  interfere  on  motion,  in  a  matter  within  the 
discretion  of  a  referee,  pending  the  reference,  and  before  his 
report,  even  though  the  referee  himself  be  desirous  of  obtaining 
the  decision  of  the  court,  on  a  point  raised  in  the  course  of  the 
proceedings.  The  parties  must  wait  for  the  report,  and  then 
review  it  in  the  usual  mode.   Schermerhorn  v.  Develin,  1  C.  R.  28. 


196  INTERLOCUTORY  PROCEEDINGS. 

When,  however,  the  report  has  been  made,  and  appears  de- 
fective, the  court  will  then  interfere  on  motion.  Poke  v.  Peek, 
1  0.  R.  54;  Deming  v.  Post,  1  C.  R.  121.  This  proceeding  is, 
however,  only  applicable  to  the  curing  of  formal  defects,  and 
not  to  the  review  of  the  conclusions  come  to,  however  erroneous 
they  may  be.  See  hereafter,  under  the  heads  of  Trial  by  Re- 
ferees and  Appeals. 

A  motion  to  set  aside  an  appeal  for  irregularity,  cannot  be 
made  to  the  tribunal  appealed  from ;  it  must  be  to  the  appel- 
late court.  Bradley  v.  Van  Zandt,  3  C.  R.  217  ;  Barman  v.  The 
Seneca  County  Bank,  6  How.  82. 

The  powers  of  the  court  do  not  extend  so  far  as  to  enable  it 
to  correct  a  final  decree,  regularly  entered,  though  not  enrolled, 
upon  motion,  except  on  consent,  or  as  to  matters  quite  of  course. 
It  can  only  be  done  by  means  of  a  rehearing,  or,  if  the  decree 
have  been  enrolled,  by  bill  of  review.  Picabia  v.  Everard,  4 
How.  113.  Corrections  may,  however,  be  made  as  to  provi- 
sions merely  consequent  on  directions  already  given,  such  as, 
for  instance,  the  correction  of  an  insufficient  notice  of  sale  in 
partition.     Romaine  v.  McMillen,  5  How.  318. 

The  decisions  of  Commissioners  of  Appraisement,  under  the 
General  Railroad  Act  of  2d  April,  1850,  cannot  be  reviewed 
upon  motion,  but  only  on  appeal  in  the  manner  there  pre- 
scribed. In  the  matter  of  the  Albany  Northern  Railroad  v.  Cra- 
mer, 7  How.  164.  See  likewise  as  to  commissioners  similarly 
appointed  under  a  special  charter,  Visscher  v.  The  Hudson  River 
Railroad  Company,  15  Barb.  37. 

Nor  is  an  application  to  compel  the  delivery  of  books,  &c, 
by  a  public  officer,  under  the  Revised  Statutes,  and  sec.  438  of 
the  Code,  a  motion  within  the  provisions  above  noticed,  but  a 
special  statutory  proceeding,  with  reference  both  to  its  incidents 
and  the  jurisdiction  of  the  officer  applied  to.  Welch  v.  Cook,  7 
How.  282. 

A  doubtful  question  in  relation  to  a  mandamus,  will  not  be 
entertained  on  ;i  motion  to  quash  it;  but  the  mandamus  will  be 
allowed  to  go,  that  the  matter  may  come  up  in  due  form  on  the 
return.     People  v.  College  of  Physicians,  7  How.  290. 

Although  the  powers  of  the  court  are  theoretically  unlimited, 
in  relation  to  granting  any  relief  incident  to  the  matter  in  ques- 
tion, under  the  usual  demand  for  that  purpose,  there  are  never- 
theless bounds  to  the  extent  to  which  their  exercise  may  be 


INTERLOCUTORY  PROCEEDINGS.  197 

practically  relied  on.  See  ante,  sec.  66  of  this  chapter,  and  the 
cases  of  Northrop  v.  Van  Dusen,  Mann  v.  Brooks,  and  Bellinger  v. 
Martindale,  there  cited. 

A  purely  technical  objection  to  a  motion  may  not  be  allowed, 
if,  on  examining  them,  the  papers  of  the  objecting  party  are 
obnoxious  to  the  same  defect  with  which  he  charges  those  of 
his  adversary.     Sawyer  v.  Schoonmaker,  8  How.  198. 

A  variety  of  special  points,  applicable  to  different  classes  of 
motions  as  such,  will  be  hereafter  considered  under  their  appro- 
priate heads,  and  in  connection  with  the  proceedings  to  which 
such  motions  relate. 

In  Burnham  v.  Be  Bevoise,  8  How.  159,  it  was  held  that  an 
incurable  defect  in  a  complaint  is  not  waived  by  pleading,  and 
can  be  taken  advantage  of  by  motion,  at  any  time,  in  any  stage 
of  the  action. 

Denial  of  Motion,  Consequences  of.'] — An  application  once  made 
and  refused,  or  granted  conditionally,  cannot  be  subsequently 
made  on  the  same  state  of  facts  to  another  justice. 

The  provisions  of  Rule  83  are  express  on  this  subject,  as  fol- 
lows: 

"If  any  application  for  an  order  be  made  to  any  justice  of 
this  court,  and  such  order  be  refused  in  whole  or  in  part,  or 
be  granted  conditionally,  or  on  terms,  no  subsequent  application, 
upon  the  same  state  of  facts,  shall  be  made  to  any  other  justice ; 
and  if,  upon  such  subsequent  application,  any  order  be  made,  it 
shall  be  revoked." 

In  Bellinger  v.  Martindale,  8  How.  113,  it  was  held  that,  where 
a  motion  is  made  and  denied,  without  any  leave  to  renew  it,  it 
cannot  be  heard  again,  without  obtaining  leave  from  the  court. 
Nor  can  such  leave  be  granted  under  the  general  prayer  for 
further  relief  in  the  notice.  The  necessary  facts  must  be  shown, 
and  the  special  relief  asked  for. 

The  denial  of  a  motion,  on  the  default  of  the  moving  party, 
is,  however,  no  bar  to  its  renewal,  if  that  default  be  sufficiently 
excused.     Bowman  v.  Sheldon,  5  Sandf.  657;  10  L.  O.  338. 

The  decision  of  a  motion  is  never  regarded  in  the  light  of 
ares  adjudicata,"  although,  as  a  matter  of  orderly  practice,  the 
court  will  not  usually  allow  a  motion  once  made  and  decided, 
to  be  renewed  on  the  same  facts,  nor  upon  additional  facts, 
without  leave  first  obtained.     Snyder  v.  White,  6  How.  321. 


198  INTERLOCUTORY  PROCEEDINGS. 

§  70.     Orders.     General  Remarks. 

The  decision  of  the  court  or  judge  on  a  motion,  being 
pronounced,  is  carried  into  effect  by  means  of  an  order. 

The  distinction  between  an  order  and  a  judgment  is  so  broad, 
that,  in  ordinary  cases,  there  is  little  risk  of  the  one  being  con- 
founded with  the  other.  This  distinction  is  laid  down  in  Bent- 
ley  v.  Jones,  4  How.  335,  3  C.  E.  37,  in  the  following  terms: 
"An  order  is  the  decision  of  a  motion.  A  judgment  is  the  de- 
cision of  a  trial." 

In  a  certain  class  of  cases,  however,  in  relation  to  decisions 
upon  demurrers,  or  in  respect  of  a  frivolous  pleading,  the 
limits  approach  more  closely,  and  have  given  rise  to  some  dis- 
cussion, which  will  be  hereafter  considered  under  the  heads  of 
the  proceedings  in  question.  The  true  rule  would  seem  to  be 
that  laid  down  in  Drummond  v.  Uusson,  8  How.  246,  1  Duer, 
633,  that,  where  the  demurrer  or  objection  goes  to  the  whole 
pleading,  the  decision  on  it  is  a  judgment:  where,  on  the  con- 
trary, the  objection  is  of  a  partial  nature,  so  that  some  portion 
of  the  pleading  stands  unaffected  by  the  result,  it  is  an  order. 
See  Reynolds  v.  Freeman,  4  Sandf.  702,  and  other  cases  cited 
hereafter,  under  the  heads  to  which  those  forms  of  proceeding- 
are  applicable. 

A  warrant  of  attachment  was  held  to  be  a  direction  of  the 
judge  in  writing,  falling  within  the  definition  of  an  order  in 
sec.  400,  in  Couklln  v.  Butcher,  5  How.  386,  1  C.  K.  (K  S.)  49, 
and  Bank  of  Lansingburgh  v.  McKie,  7  How.  360. 

An  order  made  by  an  officer  having  jurisdiction  in  the  pre- 
mises, however  irregular  it  may  appear  to  be,  cannot  be  disre- 
garded or  treated  as  a  nullity ;  the  only  course  will  be  to 
move  to  vacate  or  set  it  aside.  Sec  Blackmar  v.  Van  Lnvager, 
5  How.  367,  1  C.  R.  (N.  S.)  80;  Hempstead  v.  Hempstead,  7 
How.  8;   Oeller  v.  Jloyt,  7  How.  265. 

Id  a  certain   class  of  motions,   such  as  those  for  a  change 

of    venue,   it   is   usual   to  direct    that  the  costs  of  the  motion 

should  abide  the  event  of  the  action,  according  to  the  old  prac- 

iii  similar  cases.     In  Johnson  v.  Jillitt,  however,  8  How. 

486,  it  'a:i-  distinctly  held  that  this  cannot,  be  done,  under  the 
Code,  and  that  the  costs  of  a,  motion  cannot  be  taxed  in,  and 
enforced  as  part  of  a  recovery  on  judgment,  but  must  be  given 
at  the  time,  and  separately   enforced.      This  decision  has  not 


INTERLOCUTORY  PROCEEDINGS.  199 

been  followed,  however,  but  is  daily  disregarded  in  practice, 
and  the  principles  laid  down  in  it  seem  overstrained  and.  un- 
sustainable. It  seems  clear  that  the  retention  of  the  old  system 
in  this  respect,  is  clearly  within  the  powers  of  the  court,  as  given 
by  sec.  469,  and,  if  admissible,  that  retention  seems  as  clearly 
expedient  in  this  particular  instance. 

Orders,  Form  of.'] — The  form  in  which  an  order  thus  obtain- 
ed, is  to  be  drawn  up  and  enforced,  is  next  to  be  considered. 
The  course  to  be  pursued  in  respect  of  orders  of  course  has 
been  before  pointed  out.  That  on  opposed  motions,  and  ex  parte 
proceedings  of  the  more  important  nature,  is  drawn  up  in  more 
formal  terms.  A  skeleton  form  of  the  usual  commencement  of 
orders  of  these  descriptions,  will  be  found  in  the  Appendix. 
The  actual  order  itself,  will,  of  course,  depend  upon  the  cir- 
cumstances of  each  individual  case.  In  all,  however,  it  must 
be  in  strict  accordance  with  the  terms  of  the  notice  of  motion, 
unless  different  directions  be  given  by  the  court,  in  which  case, 
those  directions  must  be  strictly  followed. 

An  order,. duly  made,  binds  all  parties  to  the  suit  who  have 
been  properly  served.  It  is  not,  however,  it  would,  seem,  con- 
clusive upon  a  person  not  a  party,  even  though  he  appear  by 
counsel  to  oppose.     See  Acker  v.  Ledyard,  8  Barb.  514. 

On  ex  parte  applications,  or,  where  the  order  applied  for  is  of 
an  ordinary  nature,  and,  if  granted  at  all,  will  probably  be 
granted  in  the  terms  of  the  application,  the  usual  and  most 
convenient  practice  is  to  prepare  the  order  beforehand.  If,  on 
the  contrary,  the  relief  granted  vary  from  the  terms  of  the  ap- 
plication, the  form  will  then  have  to  be  settled,  after  the  deci- 
sion of  the  judge  is  pronounced.  Where  the  counsel  on  both 
sides  are  in  court,  this  is  usually  done  at  once,  and  the  terms  of 
the  order,  when  settled  between  them,  are  submitted  to  the 
judge  forthwith,  while  the  subject  is  fresh  in  his  memory. 
Where,  on  the  contrary,  the  decision  is  deferred,  and  subse- 
quently delivered,  in  the  absence  of  the  counsel  or  either  of 
them,  the  prevailing  party  then  draws  up  the  form  of  order, 
and  usually,  as  a  matter  of  courtesy,  submits  it  to  the  opposite 
counsel,  before  applying  to  the  judge  for  his  signature.  If 
any  question  arise  on  the  terms  of  the  document  so  drawn  up, 
an  appointment  must  be  made  for  attendance  before  the  judge 
who  heard  the  application,  in  order  that  he  may  finally  decide 


200  INTERLOCUTORY  PROCEEDINGS. 

as  to  the  exact  terms  in  which  his  direction  is  to  be  formally 
carried  into  effect.  Occasionally,  when  the  form  of  the  pro- 
posed order  has  been  handed  up  to  the  judge  with  the  papers, 
or  where,  in  his  own  discretion,  the  latter  thinks  fit  to  draw 
one  up  in  his  own  terms,  it  is  signed  by  him,  without  subse- 
quent communication  with  the  parties,  or  delivery  of  a  decision 
in  open  court;  in  which  case,  the  order  may,  of  course,  be 
entered  by  the  prevailing  party  without  further  preliminary. 
Where  the  order  is  made  at  chambers,  and  as  of  course,  the 
usual  course  is  for  the  judge  to  sign  his  name  at  the  foot  of  it. 
Where,  however,  it  is  made  at  special  term,  or  is  otherwise  of 
such  a  nature  as  to  require  entry  with  the  clerk,  the  practice  is 
for  him  to  endorse  upon  the  document  a  direction  for  the  clerk 
to  enter  it,  and  which  constitutes  the  latter's  authority  for  that 
purpose. 

Entry  of] — The  form  of  the  order  having  been  settled,  and 
the  judge's  signature  or  endorsement  obtained  in  all  cases,  the 
order  so  signed,  if  not  one  of  course,  as  before  alluded  to,  must 
be  entered  with  the  clerk  of  the  court.  The  practice  in  this 
respect  is  distinctly  laid  down  in  Savage  v.  Belyea,  3  How.  276, 
1  C.  R.  42,  as  follows:  "When  a  motion  is  made  to  a  justice, 
out  of  term,  upon  notice,"  (and,  of  course,  the  same  principles 
apply  a  fortiori  to  cases  where  the  order  is  made  at  special  term,) 
"as  well  the  papers  on  which  the  motion  is  founded,  as  those 
used  in  opposition  thereto,  should  be  filed  with  the  clerk  of  the 
county  in  which  the  venue  is  laid,  or,  in  case  the  place  of  trial 
has  been  changed,  in  the  county  to  which  the  other  papers  in 
the  cause  are  transferred.  The  Code  evidently  contemplates 
that  the  order,  or  decision  made  by  the  justice,  should  also  be 
entered  with  the  clerk — all  the  papers  and  orders  in  a  cause, 
should  be  filed  and  entered  in  the  same  clerk's  office,  and,  if 
not  so  entered  originally,  should  be  transferred  and  filed,  and 
the  orders  reentered  in  the  office  of  the  clerk  of  the  county 
designated  as  tin-  place  of  trial."  In  a  subsequent  part  of  the 
decision,  it  is  laid  down  that  the  doing  of  this  is  incumbent  upon 
tin:  prevailing  party,  and  that,  in  ordinary  cases,  the  papers  may 
be  safely  confided  to  him  by  the  judge  for  that  purpose.  The 
principle  that  ex  parte  orders  made  at  chambers,  need  not,  in 
most  case  ,  be  entered  with  the  clerk,  is  also  distinctly  enounced. 

The  prevailing  party  must  accordingly  sec  that  the  order  is 


INTERLOCUTORY  PROCEEDINGS.  201 

duly  entered,  and  the  necessary  papers  duly  filed  with  the  clerk 
of  the  proper  county,  according  to  the  principles  above  laid 
down.  It  is  of  course  competent  to  the  losing  party  to  insist 
upon  every  paper  being  properly  filed  ;  and,  in  the  event  of  any 
neglect  or  dereliction  on  the  part  of  his  adversary,  he  may  apply 
to  the  court,  either  on  notice,  or  by  order  to  show  cause.  It 
may  be  very  necessary  to  insist  upon  this  in  certain  cases,  where 
an  appeal  is  contemplated,  and  in  order  that  all  the  papers  used 
on  the  motion  in  the  court  below,  may  be  duly  brought  before 
the  appellate  tribunal. 

An  appeal  will  not  lie  from  any  order,  unless  first  entered 
with  the  clerk  as  above.  Provision  is  made  in  this  respect  by 
section  350,  under  which,  for  the  purpose  of  an  appeal,  any 
party  affected  by  an  order,  "may  require  it  to  be  entered  with 
the  clerk,  and  it  shall  be  entered  accordingly."  See  Savage  v. 
Relyea,  above  cited.  See,  also,  Nicholson  v.  Dunham,  1  C.  B. 
119.  If,  on  the  contrary,  an  order  be  improperly  entered,  it 
may  be  stricken  out  and  vacated  on  motion.  See  Bedell  v.  Pow- 
ell, 3  C.  K.  61. 

Ex  parte  orders,  where  not  mere  matters  of  course,  should  in 
most  cases,  be  entered  also,  and  the  papers  on  which  such  orders 
are  granted  should,  as  a  general  rule,  be  filed  with  them. 

This  is  peculiarly  the  case  with  regard  to  those  applications 
by  which  important  relief  is  granted,  under  circumstances  which 
may  be  contested  hereafter;  as,  for  instance,  on  applications  for 
provisional  remedies,  or  for  service  by  publication.  In  Vernam 
v.  Holbrook,  5  How.  3,  it  was,  however,  held  that,  on  an  appli- 
cation of  the  latter  description,  it  is  not  imperatively  necessary 
to  file  the  affidavits;  and  an  order  of  that  nature  was  sustained, 
on  an  additional  affidavit,  omitted  to  be  filed  with  two  others 
which  duly  accompanied  the  order,  on  proof  that  such  affidavit 
had  been  used  before  the  judge,  as  well  as  those  above  referred  to. 

The  case  is,  however,  of  an  exceptional  nature,  and  the  deci- 
sion evidently  contemplates  the  filing  of  all  the  affidavits  used, 
as  the  more  proper  course. 

Order  by  Consent'] — "Where  an  order  is  obtained  on  a  consent 
signed  by  the  parties,  it  must  be  entered  in  due  course,  and  the 
consent  annexed  to,  and  filed  with  it.  In  the  First  District,  the 
consent  and  order  thereupon,  must  be  submitted  to  the  judge 
and  his  signature  obtained,  before  entry  with  the  clerk.     In  the 


202  INTERLOCUTORY  PROCEEDINGS. 

second,  and  others,  the  order  may  be  entered  at  once  by  the 
latter,  without  the  judge's  signature,  on  the  consent  being  pro- 
duced and  filed. 

A  consent  signed  by  the  attorney  or  counsel  in  the  cause 
requires  no  proof,  the  court  taking  judicial  notice  of  their  sig- 
natures. Where,  however,  the  consent  is  that  of  the  party  in 
person,  an  affidavit  identifying  his  signature  to  it,  as  such,  is 
necessary,  and  should  be  annexed. 

Certified  Copy.] — The  order  having  been  duly  entered,  and  the 
papers  on  which  it  was  granted  duly  filed,  a  certified  copy  should 
be  obtained  from  the  clerk  of  the  court.  His  fee  on  such  copy 
is  the  usual  payment  of  ten  cents  per  folio,  and  may  be  charged 
as  a  disbursement.  It  is  an  usual  practice  to  prepare  the  copy 
and  examine  it  with  the  clerk,  paying  him  the  fee.  This  will 
be  found  a  convenient  method,  where  despatch  is  an  object, 
though,  of  course,  it  is  not  incumbent  on  the  party  to  do  so,  but 
the  clerk  is,  on  the  contrary,  bound  to  furnish  the  copy  on  pay- 
ment of  his  fee. 

Service  of.\ — The  order  being  thus  entered,  and  a  certified  copy 
obtained,  a  copy  of  the  latter  should  be  served  on  the  opposite 
party,  with  a  formal  notice  endorsed,  to  the  effect  that  it  is  a 
copy  of  the  order  so  made.  The  same  is  the  case  with  reference 
to  orders  of  course,  not  entered  with  the.  clerk,  copies  of  which 
should  be  served  in  like  manner,  accompanied,  where  necessary, 
with  the  copies  of  the  affidavits  or  papers  on  which  they  were 
granted,  as  before  noticed.  This  service  should,  in  all  cases,  be 
made  at  once,  and  should  never  be  neglected  or  deferred,  for 
the  obvious  reason,  that  the  time  within  which  an  appeal  may 
1"'  taken  !>;,  the  adverse  party,  runs,  under  sec.  332,  from  the 
date  of  that  service  only,  without  reference  to  the  date  of  mak- 
ing tin-  order;  and,  if  that  precaution  be  neglected,  the  time  for 
Lodging  such  an  appeal  will  therefore  be  indefinitely  postponed. 

It  would  seem  however  from  tin1  case  of  Hempstead  v.  Hemp- 
lead,  7  II-  ■. .  8,  that  an  omission  to  serve  the  whole  of  the 
papers  n  to  be  served  with  an  order,  though  an  irregu- 

larity, does  oot  render  the  proceeding  absolutely  void  and  ino- 
perative,  until  .  et  aside  on  a  proper  application. 

The  certificate  of  a  sheriff  or  competent  officer,  of  the  service 
of  an  order  by  him,  would  appear  to  be  conclusive  evidence  of 


INTERLOCUTORY   PROCEEDINGS.  203 

that  service,  according  to  the  principles  laid  down  in  the  cases 
of  The  Columbus  Insurance  Co.  v.  Force,  8  How.  353 ;  Vankirk  v. 
Wilds,  11  Barb.  520 ;  and  Sheldon  v.  Paine,  Court  of  Appeals, 
30th  December,  1852,  heretofore  cited  under  the  head  of  Sum- 
mons. 

The  peculiar  statutory  provisions,  prescribing  the  papers  to  be 
served  with  orders  granting  the  provisional  remedies  provided 
by  the  Code,  and  also  on  proceedings  supplementary  to  judg- 
ment, will  hereafter  be  cited  in  the  chapters  devoted  to  those 
subjects. 

Performance  of  Conditions.] — In  cases  where  a  motion  has 
been  granted,  on  payment  of  costs,  or  on  the  performance  of 
any  condition,  or  when  the  order  requires  such  payment  or  per- 
formance, the  party  whose  duty  it  is  to  comply  therewith,  is,  by 
Rule  35  of  the  Supreme  Court,  allowed  twenty  days  for  that  pur- 
pose, unless  otherwise  directed  in  the  order.  Where  costs  are 
to  be  taxed,  the  party  is,  by  the  same  rule,  allowed  fifteen  days 
for  their  payment,  after  taxation  upon  notice,  unless  otherwise 
ordered.  The  last  words,  giving  the  court  a  discretionary  au- 
thority in  relation  to  the  payment  of  costs  on  a  motion,  were 
first  inserted  on  the  revision  of  the  Rules  in  1852,  before  which 
the  period  was  imperative. 

In  Sturtevant  v.  Fairman,  4  Sandf.  674,  it  was  held  that,  where 
an  order  requires  a  party  to  amend,  or  the  like,  and  directs  him 
to  pay  costs;  the  payment  of  those  costs  is  not  a  condition  pre- 
cedent to  the  act  required,  unless  a  special  provision  to  that 
effect  be  made  or  necessarily  implied  in  the  order. 

Where  an  order  opening  a  default  imposed  terms  that  a  stipu- 
lation should  be  made,  which,  it  appeared,  could  not  be  per- 
formed, it  was  held  that  the  party  could  not  appeal  from  the 
order  on  that  ground;  that  his  proper  course  would  have  been 
to  give  the  stipulation ;  and  that  if,  by  reason  of  facts  beyond 
his  control,  he  could  not  afterwards  comply  with  it,  he  should 
then  set  up  such  facts,  in  answer  to  the  motion  founded  on  his 
omission  to  comply.  Gale  v.  Vernon,  4  Sandf.  709.  The  appeal 
in  that  case  was  accordingly  dismissed,  and  a  judgment  for  non- 
suit, granted  in  consequence  of  the  omission  to  stipulate  under 
these  circumstances,  sustained. 

Enforcement  of  Orders.] — This  subject,  both  as  regards  the  re- 


204  INTERLOCUTORY   PROCEEDINGS. 

covery  of  costs,  and  also  the  mode  of  compelling  the  perform- 
ance of  an  act  directed  to  be  done,  by  process  of  contempt,  will 
be  hereafter  considered  under  the  head  of  Execution. 

Review  or  Vacating  of  Orders.] — The  questions  as  to  the  re- 
view or  vacating  of  orders,  will  be  likewise  fully  considered 
under  the  head  of  Appeals.  Ex  parte  orders  may  be  vacated  or 
modified,  without  notice,  by  the  judge  who  made  them;  or  by 
the  same,  or  any  other  judge,  on  notice,  in  the  usual  manner. 
(See  Code,  sec.  324.)  Orders  of  any  nature  may  be  set  aside 
for  irregularity,  on  a  regular  application.  An  order  may  also 
he  revoked,  under  Eule  83,  if  unduly  obtained,  by  means  of  a 
second  application,  on  the  same  state  of  facts  on  which  a  previ- 
ous motion  has  been  refused.  Orders  made  upon  notice  are,  in 
the  last  place,  reviewable  by  means  of  an  appeal,  under  the 
provisions  of  the  Code  for  that  purpose,  as  considered  in  a  sub- 
sequent division  of  the  work. 


PROVISIONAL  REMEDIES.  205 


BOOK    V 

OF    PROVISIONAL    REMEDIES 


§  71.    General  Remarks. 

Some  difficulty  has  been  felt  by  the  author,  in  assigning  the 
most  fitting  place  for  the  consideration  of  the  remedies  falling 
under  this  particular  class,  and  to  which  a  separate  title  of  the 
Code — Title  VII.,  Part  II. — is  devoted.  The  difficulty  arises 
from  their  being  extrinsic  to  the  regular  progress  of  the  suit, 
and  adoptable  or  not,  at  the  discretion  of  the  parties.  Another 
is  created,  by  the  fact  that  the  applications  in  question  are  not 
universally  appropriate  to  the  same,  but,  in  some  cases,  to  differ- 
ent stages  of  a  suit  when  commenced.  The  four  first  heads 
under  this  title  are  ordinarily,  though  not  necessarily,  prelimi- 
nary to,  or  rather,  to  speak  more  correctly,  contemporaneous 
with  the  commencement;  the  last  head  is,  on  the  contrary, 
more  appropriate  to  a  later  period  in  the  progress  of  the  action. 
Impressed  by  these  difficulties,  the  author,  in  his  first  edition, 
reserved  the  consideration  of  this  species  of  relief  until  the  con- 
cluding portion  of  the  work,  in  order  to  preserve,  as  far  as 
practicable,  the  unbroken  continuity  of  the  proceedings  in  a 
suit,  from  its  first  commencement  by  summons,  to  its  final  ter- 
mination by  appeal.  This  arrangement,  whatever  may  be  its 
other  advantages,  presents,  however,  the  inconvenience  of  dis- 
associating from  their  natural  period  of  consideration,  proceed- 
ings, which,  under  ordinary  circumstances,  are  generally,  if  not 
universally  taken,  contemporaneously  with  the  original  issuing 
of  the  summons.  These  proceedings  partake,  too,  in  all  cases 
of  the  character  of  interlocutory  applications,  and  there  seems, 
according^,  an  evident  propriety  in  classifying  them  in  con- 


206  PROVISIONAL  REMEDIES. 

nection  with  that  branch  of  jurisdiction.  On  these  grounds,  after 
much  reflection,  the  author  has  decided  on  altering  his  original 
arrangement,  and  considering  this  class  of  remedies  at  the  present 
juncture,  in  juxtaposition  with  the  matters  treated  of  in  the  last 
division;  the  present  and  the  preceding  book  forming,  as  it  were, 
a  species  of  parenthesis,  in  the  consideration  of  the  progress  of  a 
suit,  as  such,  from  its  original  inception  to  its  final  termination.  As 
regards  the  first  four  chapters  of  the  book,  the  advantages  of  this 
arrangement  are  obvious ;  the  fifth  presents  a  little  more  diffi- 
culty, the  appointment  of  a  Eeceiver  being  a  subject  which 
more  usually  comes  up  for  discussion,  pending  the  preparation 
of  the  pleadings,  or  subsequent  to  the  joinder  of  issue;  and  as 
to  which  it  is  difficult,  if  not  impossible,  to  name  any  peculiar 
stage  of  the  suit,  previous  to  trial,  to  which  it  is  more  especially 
appropriate  than  to  the  others.  In  this  latter  view  it  seems,  on  the 
whole,  the  least  inconvenient  arrangement,  to  avoid  disassoci- 
ating this  peculiar  species  of  remedy  from  those  most  analogous 
to  it ;  and  to  adopt  the  classification  of  all  provisional  remedies 
under  one  general  head,  which  has  already  been  adopted  by  the 
framers  of  the  Code.  This  arrangement  has  accordingly  been 
selected,  and  will  be  carried  out  in  the  five  succeeding  chapters, 
which  will  accordingly  be  devoted  to  the  consideration  of  the 
subject,  in  the  following  order,  viz. : 

1.  Arrest  and  Bail. 

2.  Claim  and  Delivery  of  Personal  Propert}-,  or  Replevin, 
according  to  the  former  nomenclature. 

3.  Injunction. 

4.  Attachment;  and, 

5.  Receivership,  and  other  minor  remedies. 


ARREST  AND  BAIL.  207 


C  HAPTER    I. 

OF    ARREST     AND    BAIL. 


§  72.  Preliminary  Remarks.      Old  Law,  how  far 
repealed. 

Though  subjected  to  a  complete  refusion,  and  modified  in 
some  respects  by  the  Code,  the  law  on  this  subject  remains 
substantially  the  same  as  under  the  previously  existing  statutes. 
The  intentions  of  the  framers  of  the  former  measure  in  this 
respect,  are  expressed  by  themselves  as  follows,  in  page  160  of 
their  report:  "The  enactments  of  the  Code,"  say  they,  "are 
intended  as  a  substitute  for  all  the  present  statutes,  providing 
for  the  arrest  of  persons  upon  civil  process,  before  execution. 
We  have,"  they  proceed,  "  adhered  generally  to  the  principle 
of  the  existing  laws;  although,  in  some  respects,  we  have 
restricted  the  right  of  arrest,  and  particularly  by  requiring,  in 
all  cases,  an  order  of  a  judge,  and,  in  most,  an  affidavit  that 
the  defendant  is  not  a  resident  of  the  State,  or  is  about  to 
remove  from  it.  We  have  also  provided,  that,  before  an  arrest, 
the  plaintiff  must  give  security  to  pay  the  defendant's  costs,  and 
whatever  damages  he  may  sustain  by  the  arrest.  We  have  also 
proposed  that  the  defendant  may  make  a  deposit  of  money,  in 
all  cases,  instead  of  giving  bail." 

In  carrying  out  the  views  thus  enounced,  the  previous  statute 
law  upon  the  subject  is  abrogated  in  terms,  but  maintained  in 
substance,  by  sec.  178,  which  runs  as  follows : 

§  178.  No  person  shall  be  arrested  in  a  civil  action  except  as  pre- 
scribed by  this  act ;  but  this  provision  shall  not  affect  the  act  to  abolish 
imprisonment  for  debt,  and  to  punish  fraudulent  debtors,  passed  April 
26,  1831,  or  any  act  amending  the  same,  nor  shall  it  applv  to  proceed- 
ings for  contempts. 

Although,  by  the  foregoing  provision,  the  law  of  26th  April, 


203  ARRE3T  AND  BAIL 

1831,  is,  for  the  most  part,  either  repealed  or  substantially 
reenacted  ;  still,  it  would  seem  from  the  case  of  Gregory  v.  Weiner, 
1  C.  E.  (N.  S.)  210,  that,  notwithstanding,  a  warrant  may  still 
be  issued  under  the  act  of  1831,  in  all  the  cases  thereby  pre- 
scribed, so  that  a  plaintiff  may  be  considered  as  having  the 
election  to  proceed  under  either  measure.  This  conclusion  is 
unequivocally  supported  by  Corwin  v.  Freeland,  6  How.  241. 
The  mode  of  procedure  under  the  act  of  1831  belonging  exclu- 
sively to  the  old  practice,  does  not  enter  within  the  scope  of  the 
present  work. 

The  previous  law  as  to  proceedings  for  contempts,  is  modi- 
fied by  c.  390  of  the  laws  of  1817,  by  which,  imprisonment  on 
contempt  for  non-payment  of  interlocutory  costs  is  abolished, 
and  the  ordinary  remedy  of/2,  fa.  substituted  for  their  reco- 
very, except  as  respects  proceedings  against  attorneys,  counsel- 
lors, or  officers  of  the  court,  when  ordered  to  pay  costs  for  mis- 
conduct as  such,  and  also  as  regards  witnesses,  when  ordered  to 
pay  them  oh  attachment  for  non-attendance.  See  Buzard  v. 
Gross,  4  How.  23.  See,  also,  Vreeland  v.  Hughes,  2  C.  R.  42, 
where  the  court  disclaimed  any  power  to  grant  an  attachment 
for  costs,  even  though  the  party  liable,  had  obtained  a  postpone- 
ment of  the  trial,  on  the  express  condition  of  paying  them. 

Until  very  recently,  the  most  extensive  powers  of  provisional 
arrest  were  vested  in  the  federal  courts,  in  almost  all  cases.  See 
Gaines  v.  Travis,  2  C.  R.  102.  By  a  recent  regulation,  however, 
the  practice  in  those  courts  has  been  assimilated  to  that  now 
under  consideration. 

§  73.    Writ  of  Nc  Exeat. 

In  Fuller  v.  Emeric,  2  C.  R.  58,  2  Sandf.  626,  7  L.  0.  300,  it 
was  decided  by  the  Superior  Court,  that  the  writ  of  une  exeat" 
i  abolished  by  sec.  178,  according  to  the  declared  intentions  of 
tin;  commissioners,  in  page  161  of  their  report,  and  that  such 
writ  was  QOl  saved  by  the  reservation  in  sec.  244  of  the  Code 
of  L849,  of  Hi1'  Other  provisional  remedies  then  existing.  This 
view  is  no  doubt  correct,  so  fir  as  the  writ  is  looked  upon, 
merely  as  the  means  of  enforcing  payment  of. 'in  equitable  debt; 
and  is  confirmed  in  Forrest  v.  Forre8tt  3  C.  R.  121. 

I;i  another  aspect, .however,  the  continued  existence  of  the 
writ  appears  to  be  maintainable,  ami  is  maintained  by  the  Gene- 


ARREST  AND  BAIL.  209 

ral  Term  of  the  First  District  in  the  same  case  of  Forrest  v.  Forrest, 
10  Barb.  46,  3  C.  R.  141,  5  How.  125,  9  L.  0.  89,  with  relation 
to  those-  cases  in  which  its  office  is  that  of  a  prerogative  writ, 
and  its  end,  to  insure  the  performance  of  some  act  by  the  de- 
fendant, to  compel  which,  the  ordinary  process  of  execution  will 
be  insufficient,  if  he  be  allowed  to  leave  the  State. 

This  decision  was  made  under  the  Code  of  1849,  which  con- 
tained the  reservation  above  alluded  to,  but,  on  the  amendment 
of  1851,  that  reservation  was  altogether  stricken  out,  which  might 
lead  to  an  inference  that  all  provisional  remedies,  except  those 
specially  retained  by  the  Code,  must  be  considered  as  abolished. 
In  Bushnell  v.  Bushnell,  however,  7  How.  389,  (decided  under 
the  Code  of  1852,)  the  conclusion  come  to  in  Forrest  v.  Forrest 
is  adhered  to,  and  the  writ  in  question  maintained  to  be  still 
existent,  as  a  provisional  remedy,  in  the  class  of  cases  there 
alluded  to ;  and  this  conclusion  is  maintained  at  General  Term 
in  the  same  case,  reported  15  Barb.  399,  on  the  broad  ground 
that  a  failure  of  justice  must  otherwise  ensue,  no  substitute  being- 
provided  by  the  Code,  to  perform  the  office  of  the  writ,  in  that 
aspect,  and  as  a  prerogative  writ.  See  Code,  sec.  468,  by  which 
the  former  practice  is  maintained,  in  cases  where  such  a  failure 
must  otherwise  ensue. 

The  effect  of  the  omission  to  include  the  reservation  of 
provisional  remedies  then  existing,  on  the  last  revision  of  sec. 
244,  with  reference  to  other  proceedings,  not  included  within 
the  peculiar  incidents  of  the  writ  of  Ne  Exeat,  as  above  noticed ; 
and,  whether  that  alteration  might  not  be  held  as  abolishing  all 
provisional  remedies  whatever,  except  those  denned  by  the  pre- 
sent Code;  remains  to  be  settled  by  judicial  construction.  As 
yet,  there  is  no  reported  case  bearing  directly  on  the  subject, 
except  those  above  noticed. 

The  proceedings  on  this  writ,  in  those  cases  in  which  it  may 
still  be  issuable,  depend,  in  all  respects,  upon  the  old  practice, 
with  such  modifications,  of  course,  as  are  essential  to  the  new 
system.  Thus  in  Bushnell  v.  Bushnell,  7  How.  889,  above  no- 
ticed, it  was  held  that,  before  issuing  this  writ,  it  was  not  neces- 
sary to  file  the  complaint,  that  being  no  longer  an  essential  to 
the  commencement  of  an  action. 


14 


210  ARREST  AND  BAIL. 


§  74.  When  Defendant  arrestable — Statutory  Provisions. 

The  circumstances  under  which  a  defendant  is  arrestable 
under  the  Code,  are  thus  defined  by  sec.  179  of  that  measure : 

§  1*79.  The  defendant  may  be  arrested,  as  hereinafter  prescribed,  in 
the  following  cases  : 

1.  In  an  action  for  the  recovery  of  damages,  on  a  cause  of  action  not 
arising  out  of  contract,  where  the  defendant  is  not  a  resident  of  the 
State,  or  is  about  to  remove  therefrom  ;  or  where  the  action  is  for  an 
injury  to  person  or  character,  or  for  injuring,  or  for  wrongfully  taking, 
detaining,  or  converting  property. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or 
for  money  received,  or  property  embezzled,  or  fraudulently  misapplied 
by  a  public  officer,  or  by  an  attorney,  solicitor,  or  counsellor,  or  by  an 
officer  or  agent  of  a  corporation  or  banking  absociation,  in  the  course  of 
his  employment  as  such,  or  by  any  factor,  agent,  broker,  or  other  per- 
son in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect  in  office, 
or  in  a  professional  employment. 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  where  the  property,  or  any  part  thereof,  has  been 
concealed,  removed,  or  disposed  of,  so  that  it  cannot  be  found  or  taken 
by  the  sheriff,  and  with  the  intent  that  it  should  not  be  so  found  or 
taken,  or  with  the  intent  to  deprive  the  plaintiff  of  the  benefit  thereof. 

4.  When  the  defendant  has  been  guilty  of  a  fraud,  in  contracting 
the  debt,  or  incurring  the  obligation  for  which  the  action  is  brought,  or 
in  concealing  or  disposing  of  the  property,  for  the  taking,  detention,  cr 
conversion  of  which  the  action  is  brought. 

5.  When  the  defendant  has  removed,  or  disposed  of  his  property,  or 
i3  about  to  do  so,  with  intent  to  defraud  his  creditors. 

But  no  female  shall  be  arrested,  in  any  action,  except  for  a  wilful 
injury  to  person,  character,  or  property. 

!  provisions  of  this  portion  of  the  Code  are,  by  sec.  181, 
made  applicable  to  all  actions  commenced  since  30th  June, 
1848,  and,  in  which,  judgment  shall  not  have  been  obtained. 

Cases  falling  under  Subdivision  1,  Nbn'residencet  <C-c] — The 
courls  bave,  throughout,  shown  a  disposition  to  restrict,  as  far 
as  possible,  li'''  construction  of  the  foregoing  section,  as  regards 
applicati  the  ground  of  an  alleged  intention  to  remove 

from  the  Stai ■-,  and  to  require  a  very  clear  case  to  be  made  out, 


ARREST  AND  BAIL.  211 

before  it  will  interfere.  Thus,  in  Brophey  v.  Bodgers.  7  L.  O. 
152,  an  affidavit  that  the  defendant  "was  about  to  depart  for 
California,"  was  held  to  be  deficient,  as  not  showing  that  such 
removal  was  made  with  a  view  of  changing  his  residence;  and 
a  discharge  of  such  defendant,  which  had  been  granted  at  spe- 
cial term,  was  accordingly  maintained. 

The  following  have  been  decided  to  come  within  subdivision 
1,  as  cases  of  injury  to  the  person,  damages  being  given  on  a 
recovery  as  such  : 

An  action  for  crim.  con.     Delamater  v.  Russell,  4  How.  234. 

An  action  for  seduction. .    Taylor  v.  North,  3  C.  K.  9. 

An  action  against  a  common  carrier  for  the  loss  of  goods  in- 
trusted to  his  charge,  has  also  been  held  to  be  an  injury  to  pro- 
perty, as  to  which,  an  arrest  can  be  maintained.  Burkle  v.  Ells, 
4  How.  288. 

With  respect  to  the  question  as  to  when  a  defendant  will  or 
will  not  be  considered  as  "a  resident  of  the  State,"  the  case  of 
Burrows  v.  Miller,  4  How.  349,  subsequently  cited  under  the^ 
head  of  Attachment,  is  important.  In  that  case,  a  party,  origin- 
ally a  resident  of  New  York,  but  who  had  afterwards  emigrated 
to  Indiana,  and,  having  returned  from  thence,  was  living  with 
his  father  in-law1s  family  in  New  York,  seeking  employment 
there,  but  undetermined  as  to  where  he  should  settle,  was  held 
"not  to  be  a  resident  of  this  State." 

In  Haggart  v.  Morgan,  4  Sandf.  198,  a  party  who  had  left  the 
State  for  three  years,  though  purposing  to  return  at  some  future 
time,  when  it  might  suit  his  convenience,  was  held  to  be  a  non- 
resident, and  his  property  to  be  properly  seized  under  an  at- 
tachment; and  this  conclusion  was  affirmed  by  the  Court  of 
Appeals,  in  Haggart  v.  Morgan,  1  Seld.  422 ;  where  the  prin- 
ciple is  laid  down,  that  a  person  may  be  a  non-resident  of  the 
State,  within  the  meaning  of  the  statutes  relative  to  non- 
resident debtors,  while  his  domicil  continues  within  the  State. 
Actual  residence,  without  regard  to  the  domicil,  is  what  is  con- 
templated by  the  statute.  The  law  as  to  the  distinction  be- 
tween domicil  and  residence  is  similarly  laid  down  in  Bartlett 
v.  The  City  of  New  York,  5  Sandf.  44,  where  a  party  domiciled 
in  Westchester,  but  residing  half  the  year  in  New  York,  was 
held  to  be  a  resident  of  the  latter  city,  for  the  purposes  of  taxa- 
tion. A  party  under  these  latter  circumstances  would  seem, 
therefore,  not  to  be  liable  to  arrest  under  the  foregoing  provi- 


212  ARREST  AND  BAIL. 

sions.  This  remark  must  be  confined,  however,  to  an  actual 
residence,  and  not  to  the  mere  keeping  an  office,  for  business 
purposes  only. 

In  actions  falling  under  this  subdivision,  the  plaintiff,  if  he 
fails,  is  arrestable  by  the  defendant  in  execution,  and  this,  with- 
out special  order,  or  reference  to  the  fact  of  the  defendant 
having,  or  not  having  been  arrested,  during  the  progress  of  the 
action.     Kloppenberg  v.  Nee/as,  4  Sandf.  655. 

Cases  under  /Subdivision  2.  Agents,  dr.]  —  Considerable  di- 
versity of  opinion  existed  under  the  Code  of  1848,  as  to  whether 
the  expression,  "fiduciary  capacity,"  as  it  stood  alone  in  that 
measure,  embraced  the  case  of  an  agent  who  had  received  and 
misapplied  the  moneys  of  his  principal.  Dunaher  v.  Meyer,  1 
C.  R.  87,  was  authority  that  such  a  case  was  within  the  mean- 
ing of  the  measure;  Smith  v.  Edmonds,  1  C.  R.  86,  and  White 
v.  McAllister,  1  C.  R.  106,  that  it  was  not.  The  matter  is  now, 
.however,  put  out  of  doubt  by  the  insertion  in  the  present  en- 
actment, of  the  words  "factor,  agent,  broker,  or  other  person." 
In  Holbrooh  v.  Homer,  6  How.  86,  1  C.  R.  (N.  S.)  406,  an 
auctioneer,  who  had  received  goods  for  sale,  but  had  failed  in 
paying  over  the  purchase-money  to  his  principal,  was  held  to 
be  liable  to  arrest  under  this  subdivision. 

In  Burhans  v.  Casey,  4  Sandf.  706,  a  surety,  intrusted  with 
money  to  pay  it  over  directly  to  the  landlord,  on  account  of 
rent  due  from  his  principal,  was  held  arrestable  under  this  pro- 
vision. So  likewise  in  the  case  of  an  agent,  employed  to  col- 
lect moneys  and  appropriating.thcm  to  his  own  use.  Slou  v. 
King,  8  Ilow.  298;  and  in  that  of  an  attorney,  resident  in  an- 
other State,  and  employed  to  collect  moneys  there,  Yates  v. 
Blodgett,  8  Ilow.  278.  A  consignee,  responsible  for  any  de- 
ficiency on  the  sale  of  goods  reconsigncd  by  him  to  third  parties, 
and  who  had  received  that  deficiency  from  the  original  con- 
signor, under  u  similar  responsibility,  but  had  neglected  to  per- 
form his  <»wn  agreement  with  his  sub-consignees,  was  held  not 
to  Ktand  in  a  fiduciary  capacity,  as  regards  the  latter,  and  not  to 
be  arrestable  in  a  suit,  commenced  by  them.  Angus  v.  Duns- 
comb,  H  How.  II. 

In  /'//■<■  v.  L'nt,  I  Samlf.  650,  whore  goods  had  been  fraudu- 
lently obtained,  bul  afterwards  sold  by  the  defendant,  it  was 
held  that,  though  the  defendant,  was  arrestable,  the  security  to 


ARREST  AND  BAIL.  213 

be  put  in  by  him,  would  be  that  required  by  this  and  the  cor- 
responding sections,  and  not  the  special  undertaking  required 
by  subdivision  3.     See,  also,  Mulvey  v.  Davison,  8  How.  111. 

In  Siefke  v.  Tappey,  3  C.  R.  23,  it  was  held,  that  the  provi- 
sions of  this  subdivision  are  controlled  by  those  of  subdivision 
5,  and  that,  therefore,  in  an  action  against  a  female  for  breach 
of  promise  of  marriage,  an 'arrest  cannot  be  made. 

Cases  under  /Subdivision  3.  Replevin,  &c.~\ — It  was  held  under 
the  Code  of  1849,  that  it  was  not  necessary  to  allege  or  prove 
fraud,  to  justify  an  arrest  under  subdivision  3.  The  simple, 
and  even  bona  fide  removal  of  the  goods,  so  that  they  cannot  be 
taken  by  the  sheriff,  seems,  under  that  measure,  to  have  been 
sufficient;  nor  need  the  amount  in  which  bail  is  to  be  given  be 
specified;  as,  under  septions  187  and  211,  bail  must  be  given, 
in  double  the  value  as  fixed  by  the  plaintiff.  Van  Neste  v.  Co- 
nover,  5  How.  148,  8  Barb.  509.  Under  the  recent  amendments, 
a  fraudulent  intent  in  the  removal  must  now  be  proved,  before 
the  provisional  remedy  will  be  granted. 

Where,  however,  the  property  was  not  in  the  possession  or 
under  the  control  of  the  party,  and  had  not  been  so  for  long 
before  the  action  was  brought,  it  was  held,  under  the  former 
measure,  that  an  order  for  arrest  could  not  be  granted.  Roberts 
v.  Randel,  3  Sandf.  707,  5  How.  327,  3  C.  R.  190,  9  L.  0.  144. 
In  this  case,  it  was  evident,  from  the  very  nature  of  the  cir- 
cumstances, that  the  property  taken  could  not  be  restored ;  and, 
therefore,  the  action  was,  in  fact,  one  more  in  the  nature  of  a 
claim  for  damages,  than  one  in  replevin.  In  Van  Neste  v.  Co- 
nover,  the  case  was  different;  the  property  there,  having  been 
recently  taken  away,  contrary  to  the  express  terms  of  the  sale, 
and  being  capable  of  redelivery  in  specie. 

In  Merrick  v.  Suydam,  1  C.  R.  (N.  S.)  212,  the  same  conclu- 
sion was  come  to,  and  it  was  held  that  an  action  cannot  be  had, 
against  one  who  has  absolutely  and  in  good  faith  parted  with 
the  possession  of  the  property,  before  suit  brought :  the  excep- 
tion is,  when  the  defendant  has  parted  with  it,  with  the  intent 
to  deprive  the  plaintiff  of  the  benefit  of  it,  or  to  prevent  its 
being  retaken.  In  such  a  case  only,  can  the  defendant  be  held 
to  bail.  In  Remin  v.  Nagle,  1  C.  R.  (N.  S.)  219,  the  same  con- 
clusion is  maintained,  and  the  authority  of  Roberts  v.  Randel, 
confirmed  in  terms.  See  likewise  Brockway  v.  Bitmap,  12 
Barb.  347  ;  8  How.  188. 


214  ARREST  AND  BAIL. 

In  Pike  v.  Lent,  4  Sandf.  650,  the  same  views  are  maintained, 
with  reference  to  property,  obtained  originally  by  fraud,  but 
subsequently  sold  out  in  the  ordinary  course  of  business,  before 
action  brought,  and  similar  doctrines  are  laid  down  in  Mulvey 
v.  Davison,  8  How.  111. 

In  Chappel  v.  Skinner,  6  How.  838,  it  was  held  that  a  plaintiff 
was  not  at  liberty  to  obtain  possession  of  certain  goods  claimed 
by  him,  by  means  of  the  usual  process  of  replevin  ;  after  having 
already  arrested  the  defendant,  under  an  affidavit,  bringing  the 
case  within  the  terms  of  subdivision  1  of  the  foregoing  section. 
He  must  elect  between  the  two  remedies,  and  cannot  maintain 
both,  simultaneously,  in  respect  of  the  same  transaction. 

"  The  plaintiff's  course,"  it  was  said,  "  was  to  have  pursued 
the  proceedings  pointed  out  in  chapter  2,  above  referred  to, 
which  do  not  authorize  the  defendant's  arrest;  and,  if  the 
property  could  not  be  found,  and  the  case  is  within  the  third 
subdivision  of  sec.  179,  to  obtain  an  order,  and  have  the  defend- 
ant arrested ;  but,  in  that  case,  he  cannot  afterwards  obtain  the 
possession  of  the  property,  pending  the  action." 

"  Having,  in  this  case,  elected  to  have  the  defendant  arrested 
and  held  to  bail  in  the  first  instance,  under  one  of  the  subdi- 
visions of  sec.  179, 1  think  the  plaintiff  was  bound  to  wait,  until 
he  was  entitled,  by  judgment  of  the  court,  to  the  possession 
of  the  property,  before  causing  it  to  be  delivered  to  him.  I  am 
not  able  to  perceive  that  the  defendant  has  done  any  thing,  by 
which  he  waived  the  right  to  have  the  property  restored  to 
him." 

Cases  under  Subdivision  4. — Fraudulently  contracting  Debt.] — 
In  Wanzer  v.  De  Baum,  1  C.  R  (N.  S.)  280,  it  was  held  that 
the  recovery  of  judgment  in  another  State,  in  respect  of  goods 
sold,  was  no  bar  to  an  action  in  this,  grounded,  in  part,  on  the 
fraud  by  means  of  which  such  goods  were  originally  obtained; 
and  that,  in  such  an  action,  an  order  for  arrest  may  be  obtained 
under  subdivision  5  of  the  section  now  in  question,  in  respect 
of  such  fraud.  The  cases  of  Clark  v.  Rowling,  3  Comst.  21G, 
and  Oakley  v.  Aspinwall,  4  Comst.  513,  arc  authority  in  support 
of  the  right  of  the  court,  under  similar  circumstances,  to  look 
behind  a  judgment,  to  circumstances  existent  at  the  time  the 
debt,  was  originally  contracted,  or  between  that  period  and  the 
recovery  of  the  judgment. 

Cases  under  Subdivision  5.     Fraudulent  Disposition  of  Property. ] 


ARREST  AND  BAIL.  215 

— With  respect  to  subdivision  5,  it  appears  to  have  been  held 
that,  to  bring  a  defendant  within  this  section,  it  must  be  shown 
by  the  affidavit  that  he  has  removed,  or  is  about  to  dispose  of 
his  property,  secretly.  "  The  fact  that  he  is  about  to  depart  out 
of  the  country,  taking  his  property  with  him,  although  he  owes 
debts  to  a  large  amount,  will  not  subject  him  to  the  operation 
of  this  section.  It  is  the  secrecy  which  evinces  the  fraudulent 
intent,  and  not  the  disposal  or  removal  of  the  property."  Anon., 
2  C.  K.  51. 

The  questions  as  to  a  fraudulent  departure  or  intended  re- 
moval of  property,  will  be  more  fully  considered  in  a  subse- 
quent chapter,  under  the  head  of  Attachment,  to  which,  and  to 
the  cases  there  cited,  the  reader  is  accordingly  referred.  The 
proceedings  being  of  an  analogous  nature,  the  authorities 
directly  applicable  to  the  one  remedy,  are  collaterally  so  to  the 
other,  in  most  cases. 

"When  a  debtor  has  assigned  all  his  property  for  the  benefit  of 
preferred  creditors,  without  any  provision  relative  to  a  possible 
surplus ;  the  mere  omission  is  not  such  evidence  of  an  intent  to 
defraud  as  will  be  deemed  sufficient  to  warrant  his  arrest.  Spies 
v.  Joel,  1  Duer,  669. 

A  partner  cannot  arrest  a  partner,  on  an  allegation  of  this 
description.  He  has  no  remedy  under  these  circumstances  but 
in  a  suit  for  an  injunction  and  receiver.  Cary  v.  Williams,  1 
Duer,  667. 

Same  Subdivision. — Arrest  of  Female.'] — The  views  of  the 
Court  of  Common  Pleas,  and  of  the  Superior  Court,  are  at 
direct  variance,  on  the  subject  of  the  illegal  detention  or  con- 
cealment of  property  by  a  female.  It  was  held  by  the  former 
tribunal,  in  Starr  v.  Kent,  2  C.  R.  30,  that  a  female  may  be 
arrested,  in  an  action  to  recover  the  possession  of  personal  pro- 
perty, if  that  property  be  concealed,  removed,  or  disposed  of, 
so  that  it  cannot  be  found  by  the  sheriff:  the  court  considering 
that  such  concealment  or  removal  was  a  wilful  injury  to  pro- 
perty, coming  within  the  terms  of  subdivision  5.  In  Tracy  v. 
Leland,  3  C.  R.  47,  2  Sandf.  729,  8  L.  0.  234,  it  was  held,  on 
the  contrary,  by  the  latter,  that  a  concealment  of  property  by  a 
female,  under  precisely  similar  circumstances,  was  not  a  case  of 
wilful  injury  to  property,  within  that  subdivision,  and  the  case 
of  Starr  v.  Kent  was  distinctly  and  in  terms  overruled. 


216  ARREST  AND  BAIL 

A  female  is  not  arrestable  in  action  for  breach  of  promise  of 
marriage,  under  the  authority  of  Siefke  v.  Tappey,  3  C  K.  23. 
before  cited. 

In  Anon.,  1  Duer,  613,  8  How.  134,  it  was  held  by  Campbell, 
J.,  in  the  Superior  Court,  that,  notwithstanding  the  provision 
above  cited,  rendering  a  female  arrestable  for  her  wilful  torts, 
the  rule  of  common  law  is  not  altered,  which  exempts  a  married 
woman  from  arrest  in  all  cases  whatever ;  and  likewise  that  the 
Code  does  not  authorize  the  arrest  of  the  husband,  in  any  action 
founded  solely  either  upon  the  contract  or  tort  of  the  wife,  in 
which  he  is  not  a  participant. 

Personal  Privilege  from  Arrest.'] — With  reference  to  arrests 
under  the  foregoing  section,  the  fact  that  persons  standing  in 
various  peculiar  positions,  such  as  members  of  the  Legislature, 
Ambassadors,  Consuls,  &c,  possess  a  personal  privilege  from 
arrest  of  any  description  whatsoever,  must  not  be  overlooked. 
See  this  subject  heretofore  considered  and  cases  cited,  under 
the  head  of  Parties.  See  also  as  to  the  privileges  of  witnesses, 
Stewart  v.  Howard,  15  Barb.  26.  The  personal  privilege  of 
infants,  in  particular,  should  be  carefully  borne  in  mind.  See 
Brown  v.  McGune,  5  Sandf.  224. 

Arrest  for  Usurpation  of  Office.] — The  provisions  of  sec.  435, 
under  which,  in  actions  by  the  Attorney-General  in  respect  of 
usurpation  of  office,  the  defendant  is  arrestable,  must  not  be 
overlooked,  though,  necessarily,  the  proceeding  is  one  of  com- 
paratively infrequent  occurrence. 

General  PemarJcs.~\ — A  long  and  doubtful  discussion  has  taken 
place  as  to  whether,  when  an  arrest  is  sought  under  circum- 
stances of  fraud,  it  is  or  is  not  necessary  that  such  fraud  should 
be  averred  on  the  complaint.  The  cases  on  the  subject  are 
flumerous,  and  directly  contradictory  to  each  other.  The  point 
more  immediately  at  issue  is,  however,  as  to  an  arrest  on 
execution  after  judgment;  and,  therefore,  though  pertinent, 
they  are  not  directly  applicable  to  that  immediately  under 
consideration.  They  will  be  found  collected  and  fully  com- 
mented upon,  under  the  heads  of  Pleading  and  Execution,  and 
may  be  referred  to  acci  irdingly. 

Wilson  v.  Eobinsorif  6  Eow.  L10,  has  reference  to  a  criminal 
arrest,  and  is  therefore  not  within  the  scope  of  this  work. 


ARREST  AND  BAIL.  217 

§  75.  Application  for  Arrest,  when  and  how  made. 

Time  of  Application.] — Under  the  measure  of  1848,  an  arrest 
might  be  applied  for  "at  the  time  of  commencing  the  action," 
and  doubts  arose  as  to  the  construction  of  this  clause  ;  Dunaher 
v.  Meyer  being  authority  that  the  order  might  be  made  before 
service  of  summons;  see,  also,  Gregory  v.  Werner,  1  C.  B.  (N.S.) 
210;  and  Lee  v.  Averill,  2  Sandf.  621,  1  C.  E.  73,  to  the  con- 
trary effect.  The  point  is,  however,  now  set  at  rest  by  the 
present  amendment  in  sec.  183,  which  provides  that  "  the  order 
may  be  made  to  accompany  the  summons,"  which  involves, 
of  necessity,  its  being  obtained  before  the  actual  service  of  the 
latter. 

Mode  of  Application.'] — The  application  for  an  arrest  must, 
under  sec.  180,  be  made  to  a  judge  of  the  court  in  which  the 
action  is  brought,  or  a  county  judge.  The  motion  is  of  course 
ex  parte,  and  without  notice. 

It  must  be  grounded  on  affidavit,  the  requisites  of  which  are 
thus  prescribed  by  sec.  181 : 

§  181.  The  order  may  be  made,  where  it  shall  appear  to  the  judge 
by  the  affidavit  of  the  plaintiff,  or  of  any  other  person,  that  a  sufficient 
cause  of  action  exists,  and  that  the  case  is  one  of  those  mentioned  in 
section  179. 

Form  of  Affidavit.'] — Great  care  must  be  bestowed  upon  the 
preparation  of  the  affidavit  in  question,  as,  the  remedy  being 
one  involving  the  liberty  of  the  citizen,  the  court  will,  in  all 
cases,  require  a  strict  compliance  with  the  letter  of  the  statute; 
and  that  a  clear  case  warranting  their  interference  should  be 
distinctly  shown.  The  following  decisions  will  throw  consider- 
able light  upon  the  subject: 

In  Adams  v.  Mills,  3  How.  219,  (an  application  under  subdi- 
vision 1,)  the  learned  judge  expressed  himself  thus:  "To 
authorize  an  order  to  hold  to  bail,  the  affidavits  must  show  a 
good  cause  of  action,  and  that  the  defendant  is  a  transient  per- 
son, or  is  about  to  depart  beyond  the  jurisdiction  of  the  court ; 
and  this  must  rest,  not  merely  upon  information  and  belief,  but 
facts  and  circumstances  must  be  set  forth,  from  which  such  an 
inference  may  properly  be  drawn.  The  declarations  of  the 
defendant  as  to  his  intentions,  are,  of  course,  amongst  the  most 


218  ARREST  AND  BAIL. 

satisfactory  kinds  of  evidence,  to  show  that  he  is  about  to  go 
beyond  the  jurisdiction  of  the  court."  The  same  case  is  also 
authority,  that  such  affidavits  were  not  open  to  objection,  on  the 
ground  of  their  being  sworn  before  the  plaintiff's  attorney,  as 
justice  of  the  peace,  because,  when  they  were  sworn  to,  no  suit 
had  been  commenced.  It  would  be  safer  and  better,  however, 
to  have  such  affidavit  sworn  before  an  indifferent  party,  in  all 
cases  where  possible.  The  action  in  that  case  was  in  slander, 
and  the  affidavit  omitted  to  aver  that  the  words  spoken  were 
false.  The  order  was  accordingly  vacated,  on  the  ground  that 
no  cause  of  action  had  been  shown. 

In  Martin  v.  Vanderlip,  3  How.  265,  1  C.  E.  41,  it  was  held 
to  be  "well  settled,  both  in  England  and  in  this  State,  that  the 
affidavit  to  hold  to  bail  must  be  positive,  and  not  argumenta- 
tive," and  must  make  out  a  prima  facie  case  against  the  defend- 
ant; and  also,  that  "the  former  practice,"  in  similar  cases, 
"remained  in  force,  except  so  far  as  it  is  modified  by  the  Code 
in  matters  of  form." 

In  Pindar  v.  Black,  4  How.  95,  it  was  decided  that,  in  an 
affidavit  of  this  nature,  two  things  must  be  made  to  appear; 
1,  that  a  sufficient  cause  of  action  exists,  and  2,  that  such  cause 
of  action  is  among  those  specified  in  sec.  179.  It  is  not  suffi- 
cient for  the  party  merely  to  state  that  his  case  is  one  of  those 
mentioned  in  that  section ;  the  facts  must  be  stated  to  show  that 
it  is  so.  See  Frost  v.  Willard,  9  Barb.  440,  after  cited  under  the 
head  of  Attachment.  It  is  not  necessary,  it  would  seem,  for  the 
party  to  state,  in  terms,  that  "an  action  has  been  or  is  about  to 
be  commenced,"  though  perhaps  it  would  be  better  to  do  so. 
The  same  case  is  also  authority  as  to  the  power  of  the  court  to 
grant  a  warrant  to  arrest  an  unknown  defendant,  which  was 
there  called  in  question. 

The  affidavit  must  be  positive,  and  must  show  facts  and  cir- 
cumstances, to  evince  the  fraudulent  intent  alleged.  Where, 
therefore,  the  affidavit  on  which  an  attachment  was  grounded, 
merely  stated  on  the  "  information  and  belief"  of  the  plaintiff, 
that  "  the  defendant  was  a  fraudulent  and  absconding  debtor," 
and  that  his  property  "was  being  conveyed  away  with  intent 
to  defraud  his  creditors,"  without  offering  any  evidence,  (even 
on  information,) of  any  act  of  the  defendant  showing  such  fraud- 
ulent Intent,  a  judgment  obtained  upon  that  attachment  was 
reversed,  with  costs.     Camp  v.  V'ibbclts,  3  C.  R.  45.     See,  also, 


ARREST  AND  BAIL.  219 

as  to  the  sufficiency  of  such  an  affidavit,  the  case  of  Brophy  v. 
Rogers,  7  L.  0.  152,  before  cited  in  this  chapter,  and,  likewise, 
Frost  v.  Willard,  9  Barb.  440,  above  referred  to.  In  Whitlock 
v.  Roth,  however,  10  Barb.  78 ;  5  How.  143,  9  L.  0.  95,  3  C.  E. 
142,  it  was  held,  that  "an  order  for  arrest  may  be  obtained  on 
an  affidavit  stating  information  and  belief;  but  the  nature, 
quality,  and  sources  of  the  information  must  be  disclosed,  so 
that  the  judge's  mind  may  have  something  to  work  upon,  and. 
he  may  be  able  to  determine  whether  the  belief  is  well  founded 
or  not."  Good  reasons,  too,  must  be  given  why  a  positive  state- 
ment cannot  be  procured.  See,  also,  Pomroy  v.  JBwdmarsh,  5 
How.  437  ;  and  Camman  v.  Tompkins,  and  Gilbert  v.  Tompkins,  1 
C.  R.  (N.  S.)  pp.  12  and  16,  subsequently  cited  on  the  analo- 
gous questions  of  injunction  and  attachment.  See  likewise 
as  to  averments  on  belief  unsupported  by  facts,  Fleury  v.  Roget, 
5  Sandf.  646.  So  also  in  Vanderpool  v.  Kissam,  4Sandf.  715,  an 
affidavit  in  a  case  of  malicious  prosecution,  merely  stating  in 
general  terms  the  existence  of  malice  and  the  want  of  probable 
cause,  was  held  insufficient,  as  not  stating  the  facts  relied  on  as 
prima  facie  evidence  to  sustain  the  averment  so  made. 

Where  a  sufficient  cause  of  action  has  been  set  forth,  special 
cause  for  requiring  bail  need  not  be  proved,  as  under  the  for- 
mer practice.     Baker  v.  Swackhamer,  5  How.  251 ;  3  C.  R.  248. 

In  reference  to  allegations  as  to  the  fraudulent  disposition  of 
his  property  by  a  defendant,  and  the  necessity  of  averring  that 
such  disposition  has  been  made  "  secretly,"  see  Anon.,  2  C.  R. 
51,  before  cited. 

To  give  any  precise  form  for  an  affidavit  of  this  nature 
would  be  impossible,  inasmuch  as  such  affidavit  must,  of  neces- 
sity, vary  according  to  the  circumstances  of  each  particular 
application.  One  only  caution  appears  necessary  with  refer- 
ence to  this,  as  to  other  similar  cases ;  and  this  is,  that,  on  all 
occasions,  the  gravamen  of  the  charge  against  the  defendant 
should  be  summed  up  in  the  exact  words  of  the  statute  itself, 
and  should  be  stated  throughout,  in  accordance  with  that  word- 
ing, so  as  to  bring  the  case,  in  precise  and  definite  terms,  within 
one  or  more  of  the  subdivisions  of  sec.  179.  It  is  impossible 
to  insist  too  strongly  upon  the  expediency  of  strict  attention 
being  paid  to  this  rule,  in  all  questions,  of  whatever  nature; 
and,  likewise,  on  the  principles  laid  down  in  the  foregoing  de- 
cisions, particularly  with   reference  to   the  clear  and  correct 


220  ARREST  AND  BAIL 

statement  of  the  cause  of  action,  being  kept  in  mind  on  all  oc- 
casions. 

Security. ,] — On  applying  for  the  order,  the  plaintiff  must  also 
be  prepared  with  security,  in  compliance  with  the  provisions  of 
sec.  182  in  that  respect,  which  run  as  follows: 

§  182.  Before  making  the  order,  the  judge  shall  require  a  written 
undertaking  on  the  part  of  the  plaintiff,  with  or  without  sureties,  to 
the  effect  that,  if  the  defendant  recover  judgment,  the  plaintiff  will 
pay  all  costs  that  may  be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  arrest,  not  exceeding  the  sura 
specified  in  the  undertaking,  which  shall  be  at  least  one  hundred 
dollars.  If  the  undertaking  be  executed  by  the  plaintiff,  without 
sureties,  he  shall  annex  thereto  an  affidavit  that  he  is  a  resident  and 
householder  or  freeholder  within  the  State,  and  worth  double  the  sum 
specified  in  the  undertaking,  over  all  his  debts  and  liabilities. 

This  undertaking  must,  under  sec.  423,  be  filed  with  the 
clerk  of  the  court,  and  must  be  duly  proved  and  acknowledged, 
in  compliance  with  Eule  72  of  the  Supreme  Court.  The  form 
will  be  found  in  the  Appendix. 

In  Richardson  v.  Craig,  1  Duer,  666,  it  is  held  that  the  under- 
taking in  question  must,  in  all  cases,  be  executed  by  the  plain- 
tiff in  person  ;  though  possibly  in  the  case  of  an  infant  or  feme 
covert,  the  next  friend  or  guardian  might  be  reasonably  con- 
sidered a  plaintiff,  and  his  undertaking  sufficient.  The  order 
in  that  case  was  refused,  because  the  undertaking  was  not 
executed  by  the  plaintiff,  although  the  latter  was  non-resident, 
it  being  held  that  the  terms  of  the  Code  admitted  of  no  other 
interpretation.  Whether  this  view  is  maintainable  in  all  its 
strictness,  and  whether,  in  this  construction,  the  words  on  the 
part  of  the  plaintiff  have  received  their  full  latitude,  seems 
doubtful;  there  can  be  no  doubt,  however,  that  the  plaintiff's 
signature  had  better  be  obtained  in  all  cases,  where  possible  at 
the  time. 

In  Leopold  \.  Poppenheimer,  1  C.  11.  39,  it  was  held,  that  no 
copy  of  this  undertaking  need  be  served  on  the  defendant  at 
the.  time  of  the  arrest.  "When  the  officer  issues  an  order  of 
arrest-,  be,  in  effect,  decides  on  the  sufficiency  of  the  undertak- 
ing, and  such  decision  is  irea  adjudicate?  The  Code  deprives 
the  defendanl  of  any  benefit  of  exception  to  the  sureties  in  per- 


ARREST  AND  BAIL.  221 

sonam ;  the'  deli  very,  therefore,  to  him  of  a  copy  of  the  under- 
taking would  be  useless." 

It  seems,  too,  by  the  case  of  Manley  v.  Patterson,  3  C.  R.  89, 
that  the  defendant  is  entirely  without  remedy,  if  the  plaintiff's 
sureties  omit  to  justify,  or  even  on  showing  them  to  be  insuffi- 
cient or  insolvent.  The  Court  even  doubted  whether  u  the  judge 
had  any  right  to  refuse  an  order  for  arrest,"  where  the  sheriff 
had  returned  that  the  property  was  eloigned,  "  even  if  he  was 
fully  aware  that  the  plaintiff  had  put  in  sham  security."  The 
arrest  in  that  case  was,  however,  vacated  on  another  ground, 
hereafter  noticed. 

It  would  appear,  however,  by  analogy  with  the  principles 
laid  down  in  Davis  v.  Marshall,  14  Barb.  96,  with  reference  to 
the  issuing  of  an  attachment  by  a  justice,  that  the  giving  the 
undertaking  by  the  defendant  in  the  form  above  mentioned,  is 
a  condition  precedent  to  the  making  the  order,  and  that,  if 
omitted,  the  proceeding  will  be  voidable,  if  not  void.  See  Ben- 
nett v.  Brown,  4  Comst.  254,  there  cited. 

Order  of  Arrest.'] — The  form  of  order  to  be  applied  for,  and 
the  necessary  subscription  or  endorsement,  is  thus  provided  for, 
in  sec.  183 : 

§  183.  The  order  may  be  made  to  accompany  the  summons,  or  at 
any  time  afterwards,  before  judgment.  It  shall  require  the  sheriff  of 
the  county  where  the  defendant  may  be  found,  forthwith  to  arrest  him, 
and  hold  him  to  bail  in  a  specified  sum,  and  to  return  the  order  at  a 
time  and  place  therein  mentioned,  to  the  plaintiff  or  attorney,  by  whom 
it  shall  be  subscribed  or  endorsed. 

See  Appendix. 

The  time  of  the  return  of  this  order  not  being  fixed  by  spe- 
cial provision,  should  be  inserted  at  some  reasonable  date.  The 
first  day  of  the  succeeding  term  may,  in  the  majority  of  instances, 
be  a  proper  period  to  insert,  but  each  case  will  be  governed  by 
its  peculiar  circumstances.  The  amount  of  bail  required,  must 
also  be  fixed.  In  ordinary  cases,  the  proper  sum  will  be  double 
the  amount  of  the  claim.  The  matter  rests,  however,  in  the 
discretion  of  the  judge,  and  may  be  modified  by  him  accord- 
ingly. See  Baker  v.  Swackhamer,  5  How.  251,  3  C.  R.  248,  here- 
after cited. 

It  has-been  held  that  an  arrest  cannot  be  made  on  execution, 
unless  an  order  has  been  obtained  under  this  section.     Squire 


222  ARREST  AND  BAIL. 

v.  Flynn,  8  Barb.  169;  2  C.  R.  117.     See,  however,  this  point 
fully  considered  under  the  head  of  Execution. 

The  affidavit,  undertaking,  and  order,  having  been  thus  pre- 
pared, and  submitted  to  the  judge  to  whom  application  is  made, 
his  signature  must  be  obtained  to  the  latter,  if  his  decision  be 
to  grant  it.  The  undertaking  having  been  filed  as  above 
directed,  the  affidavit  and  order  of  arrest  must  thereupon  be 
delivered  to  the  sheriff,  as  provided  by  sec.  184,  with  all  neces- 
sary instructions,  to  enable  him  to  discover  and  arrest  the 
defendant.  The  judge  should  also  endorse  his  approval  on  the 
undertaking  before  it  is  filed. 

§  76.  Mode  and  Incidents  of  Arrest. 

With  this  delivery,  the  duty  of  the  plaintiff's  attorney  is 
completed,  and  that  of  the  sheriff  commences.  In  cases  where 
immediate  despatch  is  necessary,  it  may  be  convenient  to  pre- 
pare and  hand  to  the  sheriff,  with  the  originals,  copies  of  the 
affidavit  and  order,  which,  under  the  same  section,  it  is  his  duty 
to  deliver  to  the  defendant  at  the  time  of  the  arrest.  In  strict- 
ness, it  is  the  sheriff's  duty  to  make  them,  but  the  necessary 
delay  for  that  purpose,  however  short,  might  possibly,  in  some 
cases,  involve  inconvenience. 

In  Keeler  v.  Belts,  3  C.  R.  183,  it  was  held,  that  an  omission 
on  the  part  of  the  sheriff,  to  serve  a  copy  of  the  order  of  arrest 
as  thus  directed,  is  a  defect  which  may  be  cured  by  amendment. 
It  is,  however,  clearly  an  irregularity,  and,  in  that  case,  costs 
were  imposed  as  a  condition  of  such  amendment. 

Where,  however,  the  sheriff  has  made  a  return,  by  which  it 
appears  that  all  necessary  proceedings  were  taken,  that  return 
is  conclusive,  and  cannot  be  impeached.  The  Columbus  In- 
surance Company  v.  Force,  8  IIow.  353.  See  ante,  under  the 
heads  of  Sheriff  and  Service. 

The  arrest  itself  is  to  be  made  in  the  usual  manner,  as  pre- 
Bcri  bed  1  >y  s<  •<•,  185.  The  liability  of  the  sheriff,  in  respect  of  an 
escape  or  otherwise,  is  expressly  provided  for  by  sections  201 
and  202.  [fa  deposit  be  made,  or  bail  be  given,  and  justified 
as  hereafter  noticed,  the  sheriff's  liability  is  at  an  end;  but,  if 
not,  he  is,  himself,  liable  as  bail.  He  may,  however,  discharge 
himself  from  that  liability,  by  the  giving  and  justification  of 
bail,  in  tbe  same  manner  as  provided  with  respect  to  the  defend- 


ARREST  AND  BAIL.  223 

ant  himself,  at  any  time  before  the  latter  is  charged  in  execution ; 
but,  after  he  has  been  so  charged,  his  powers  in  that  respect  are 
gone,  and  his  liability  is  the  same  as  that  of  other  bail.  Beek- 
man  v.  Carnley,  9  How.  180 ;  Sartos  v.  Ilerceques,  9  How.  188. 
His  liability,  as  above,  may  be  enforced,  by  proceeding  against 
him  or  his  sureties,  in  the  usual  manner.  If,  on  the  other  hand, 
bail  be  put  in  on  the  part  of  the  defendant,  and  such  bail,  or 
others,  fail  to  justify,  they  will,  under  sec.  203,  be  liable  to  the 
sheriff,  by  action,  for  any  damages  which  he  may  sustain  by  that 
omission. 

The  statutory  provisions,  as  to  the  granting  of  the  liberties 
of  the  jail  to  prisoners,  and  also  in  relation  to  escapes,  will  be 
found  in  articles  3  and  4  of  title  VI.,  chap.  II.,  part  III.  of  the 
Eevised  Statutes,  2  E.  S.  432  to  439.  Tanner  v.  Rallenbeck,  4 
How.  297,  is  authority  that  the  subsequent  death  of  an  escaped 
prisoner,  even  before  the  commencement  of  the  action,  does  not 
operate  as  a  discharge  of  the  sheriff;  but  that,  on  the  contrary, 
such  cause'  of  action  is  complete  when  the  escape  takes  place, 
liable,  however,  to  be  defeated  by  the  voluntary  return  or  re- 
capture of  the  debtor,  before  suit  brought.  The  sheriff  takes 
the  risk  of  the  party's  death,  as  it  had  there  happened. 

See  also  Hutchinson  v.  Brand,  6  How.  73,  affirmed  by  Court 
of  Appeals,  31st  December,  1§53,  a  case  of  escape  upon  execu- 
tion, which  holds  that  no  defect  or  irregularity  in  the  process 
under  which  a  prisoner  is  arrested,  can  be  alleged  by  the  sheriff, 
as  an  excuse  for  an  escape.  Unless  the  process  be  actually  void, 
and  not  merely  voidable  on  application  of  the  parties,  he  remains 
answerable.  In  the  same  case,  it  is  laid  down  that,  in  an  action 
for  escape,  the  sheriff  is  liable  for  the  whole  judgment  and  costs, 
but  not  for  interest  on  the  former. 

Course,  if  Arrest  not  made  within  Time  limited^] — If  the  sheriff 
fail  to  arrest  the  defendant  within  the  time  prescribed  by  the 
order,  an  amendment  should  be  applied  for  on  the  same  papers, 
under  the  powers  conferred  by  sec.  174. 

§  77.   Course  of  Defendant,  when  arrested. 

Motion  to  Vacate.'] — On  the  arrest  taking  place,  the  first  point 
to  be  looked  into  by  the  defendant  is,  in  relation  to  the  validity 
of  the  order  of  arrest,  and  also  as  to  the  amount  of  the  bail 


224  ARREST  AND  BAIL. 

thereby  required  to  be  given;  as,  if  the  order  be  informal,  or  if 
the  bail  demanded  be  excessive,  relief  may  be  obtained  by  him, 
by  means  of  a  special  application  to  the  court.  His  powers  in 
this  respect  are  conferred  by  sec.  204,  in  the  following  terms: 

§  204.  A  defendant  arrested  may,  at  any  time  before  the  justification 
of  bail,  apply,  on  motion,  to  vacate  the  order  of  arrest,  or  to  reduce  the 
amount  of  bail. 

The  motion  for  this  purpose  must  be  made  upon  notice  in  the 
usual  manner,  or  upon  an  order  to  show  cause.  If  grounded 
on  a  positive  defect  on  the  papers  on  which  the  arrest  was 
granted,  no  affidavits  will  of  course  be  necessary.  If,  on  the 
other  hand,  the  application  be  grounded  on  facts  extrinsic  to 
the  case  as  made  by  the  plaintiff,  the  facts  so  adduced  must,  of 
course,  be  proved  on  affidavit  in  the  usual  manner,  and  copies  of 
such  affidavits  must  be  served  with  the  notice  or  order  to  show 
cause,  in  due  course. 

Affidavits  on  Motion. — In  Martin  v.  Vanderlip,  3  How.  265,  1 
C.  K.  41,  it  is  held  that,  except  in  matters  of  form,  the  old  prac- 
tice still  remains  in  force.  When  indebtedness  is  sworn  to 
positively  by  the  plaintiff,  the  counter  affidavit  of  the  defendant, 
denying  it,  will  not  be  received,  for  that  would  lead  to  trial 
upon  affidavits,  of  every  cause  in  which  the  defendant  is  arrest- 
ed. See  also  Adams  v.  Mills,  3  How.  219.  This  last  doctrine  is, 
however,  somewhat  qualified  by  that  laid  down  in  Barber  v. 
Hubbard,  3  C.  R.  169,  before  cited. 

According  to  the  doctrine  as  laid  down  in  Martin  v.  Vander- 
lip, and  Adams  v.  Mills,  above  cited,  it  seems  that,  if  the  defend- 
ant move  for  his  discharge,  on  the  ground  of  any  defect  in  the 
original  affidavit,  the  plaintiff  cannot  supply  that  defect  by  a 
supplementary  one.  Section  205,  it  is  there  held,  only  applies  ' 
to  cases  where  the  motion  for  discharge  is  founded  on  proofs 
adduced  by  the  defendant,  and  not  when  it  is  based  upon  a 
defect  ah  initio.  The  defendant  may  show  any  matter  in  avoid- 
ance,  us  an  insolvent's  discharge,  that  he  was  privileged  from 
t,  "i-  tli''  Id.''. 

There  seems,  however,  reason  to  doubt  whether  the  plaintiff 
might  not,  on  application,  be  let  in  to  amend  his  affidavits.  Sec 
Spalding  v.  Spalding,  3  How.  297,  1  C.  It.  64,  and  the  authori- 
ties there  cited,  on  the  analogous  question  of  replevin. 

In  Camp  v.  77/,/w/v,  '.)  C.  11.45,  also  before  cited,  the  defendant 


ARREST  AND  BAIL.  225 

was  let  in  to  prove,  on  affidavit,  that  the  sheriff  had  made  an 
incorrect  return,  in  stating  that  the  property  there  in  question 
had  been  concealed  by  him;  and,  having  established  that  he 
had  not  made  an  improper  disposition  of  it,  the  order  for  his 
arrest  was  vacated.  This  case  must  be  distinguished  from  those 
before  cited,  as  to  the  conclusiveness  of  a  sheriff's  return,  in 
respect  of  matters  falling  directly  within  the  scope  of  his  offi- 
cial duties.  The  line  of  distinction  would  seem  to  be  between 
the  official  acts  of  the  sheriff,  as  such,  and  collateral  facts  con- 
nected therewith.  The  service  of  process  is  clearly  referable  to 
the  former  class ;  the  circumstances  under  which  the  sheriff  has 
been  unable  to  seize  property  affected  by  a  writ  in  his  hands, 
belong  as  clearly  to  the  latter. 

In  Manley  v.  Patterson,  3  C.  E.  89,  a  similar  conclusion  was 
come  to,  and,  it  being  established  that  the  defendant  had  not 
removed  or  concealed  the  property  there  in  question,  so  as  to 
warrant  his  arrest,  the  order  for  that  purpose  was  vacated. 

In  Barber  v.  Hubbard,  3  C.  E.  126,  it  is  stated  to  have  been 
held  that,  on  a  motion  to  discharge  an  order  of  arrest,  it  is  com- 
petent  "to  read  affidavits,  denying  the  allegations  in  the  affida- 
vits on  which  the  order  was  granted,  and,  such  denial  being 
implicitly  made,  as  to  matters  material  to  the  arrest,  the  order 
Avill  be  vacated."     No  facts  are  given  in  the  report. 

The  case  is  subsequently  fully  reported,  3  C.  E.  169,  on  ap- 
peal from  the  above  decision  at  special  term,  on  which  the  order 
was  affirmed,  on  the  point  above  referred  to.  The  views  taken 
in  Martin  v.  Vanderlip,  as  to  the  nature  of  the  affidavits  which 
may  be  adduced,  are,  at  first  sight,  overruled  by  this  decision. 
The  defendant,  it  was  there  held,  is  not  arrested  on  an  affidavit 
of  mere  indebtedness,  but  on  the  ground  of  something  in  the 
nature  of  fraud,  and  it  is  competent  for  him  to  state  any  cir- 
cumstances, tending  to  disprove  or  explain  away  the  fraud  so 
alleged.  "  The  Code  sets  no  limit  to  the  matters  to  be  contain- 
ed in  the  affidavits,  on  either  side,"  and  none,  it  was  there  held, 
will  be  imposed.  The  case  of  Morgan  v.  Avery,  subsequently 
cited  under  the  head  of  Attachment,  is  referred  to  in  the  course 
of  the  decision.  The  doctrines  as  laid  down  in  these  decisions, 
may,  however,  be  reconciled  to  this  extent,  viz:  that  in  an  ac- 
tion on  contract,  the  mere  fact  of  indebtedness,  as  constituting 
the  ground  of  the  action  itself,  cannot  be  contested  on  affidavits, 
though  collateral  circumstances,  tending  to  show  fraud,  and  thus 
15 


226  ARREST  AND  BAIL. 

bearing  not  on  the  ultimate  recovery,  but  on  the  immediate  and 
extrinsic  remedy,  are  contestable  in  that  manner.  By  the 
drawing  of  this  distinction,  the  fundamental  doctrine  of  these 
decisions  is  brought  into  perfect  harmony,  and  this  appears  to 
be  the  correct  view.  See  the  principles  laid  down,  and  the 
distinctions  drawn,  as  to  facts  intrinsic  or  extrinsic  to  the  record, 
in  Wilmerding  v.  Moon,  8  How.  -213. 

"  If  the  motion  be  made  upon  affidavits  on  the  part  of  the 
defendant,  but  not  otherwise,  the  plaintiff  may,"  under  sec.  205, 
:i  oppose  the  same  by  affidavits  or  other  proofs,  in  addition  to 
those  upon  which  the  order  for  arrest  was  made.  See  Martin  v. 
Vanderlip,  3  How.  265,  1  C.  E.  41,  above  cited.  The  questions 
as  to  the  admissibility  of  counter  affidavits  in  general,  and  as  to 
whether  a  verified  pleading  is  or  is  not  admissible  in  that  light, 
will  be  found  fully  treated  under  the  subsequent  heads  of  In- 
junction and  Attachment,  to  which  the  decisions  in  relation  to 
that  point  are  primarily  applicable. 

General  Incidents  of  Motion."] — It  appears  from  the  case  of  Dun- 
aher  v.  Meyer,  1  C.  E.  87,  that  such  motion  need  not  necessarily 
be  made  before  the  judge  who  granted  the  order  to  arrest. 

The  defendant  cannot  move  to  vacate,  on  the  ground  that 
special  cause  for  requiring  bail  has  not  been  shown,  as  under 
the  former  practice.  The  setting  forth  a  sufficient  cause  of  ac- 
tion is  now  enough.  Baker  v.  Swackhamer,  5  How.  251 ;  3  C. 
E.  248. 

It  was  also  held  in  the  same  case,  that  the  defendant  might 
move  to  reduce  the  amount  of  bail,  on  the  plaintiff's  own  show- 
ing. The  amount  was  there  reduced  accordingly  to  $500,  the 
case  being  one  of  libel,  not  of  an  aggravated  character,  and  the 
defendants,  permanent  residents,  and  not  transient  persons. 

Several  of  the  cases  before  cited  are  authorities  as  to  the  cir- 
cumstances under  which,  if  shown,  an  order  of  arrest  will  be 
vacated.  Sec,  in  particular,  Bropliy  v.  llogers,  and  Adams  v. 
ibove  referred  to. 

In  Martin  v.  Vanderlip^  3  How.  265,  1  C.  E.  41,  the  question  as 
to  the  fiicts,  which  may,  or  may  not  be  stated,  with  a  view  to 
entitle  tip-  defendant  to  :i  discharge  of  such  an  order,  is  fully 
entered  into. 

That  decision,  as  before  noticed,  lays  down  the  principle 
that,  except  in  matters  of  form,  the  old  practice  still  remains  in 
force. 


ARREST  AND  BAIL.  227 

A  motion  of  this  nature  must  be  made,  before  the  defendant 
has  taken  any  step  in  the  matter,  which  amounts  to  an  admis- 
sion of  the  legality  of  his  arrest.  The  test  of  his  privilege  in 
this  respect,  is  afforded  by  sec.  204,  above  cited,  where  this 
liberty  is  reserved  to  him  at  any  time  before  the  justification  of 
bail.  See  Barber  v.  Hubbard,  3  C.  R  169,  above  cited.  See  also 
similar  principles,  with  reference  to  a  defendant  being  concluded 
from  contesting  the  facts  on  which  an  attachment  was  originally 
issued,  by  giving  security  under  it,  as  laid  down  in  Haggart  v. 
Morgan,  1  Seld.  422.  The  mere  putting  in  of  bail  waives  all 
objections  to  the  form  of  the  plaintiff's  affidavit,  or  on  the 
ground  of  privilege  from  arrest.  Stewart  v.  Howard,  15  Barb.  26. 
See  similar  principles  with  regard  to  the  estoppel  of  the  bail 
themselves,  as  laid  down  in  Gregory  v.  Levy,  12  Barb.  610;  7 
How.  37.  See,  also,  generally,  as  to  the  waiver  of  formal  objec- 
tions by  an  unconditional  appearance,  Webb  v.  Mott,  6  How.  439, 
and  cases  there  cited. 

In  Barber  v.  Hubbard,  above  cited,  it  was  further  held  that 
the  privilege  of  the  defendant,  as  above,  could  not  be  con- 
sidered as  waived  by  any  mere  inactivity  on  his  part,  or  by  a 
very  long  acquiescence.  A  more  restricted  view  is,  however, 
taken  in  Lewis  v.  Truesdell,  3  Sandf.  706,  where  it  was  held  that 
if,  before  moving  to  vacate  the  order,  the  defendant  allow  the 
time  within  which  the  plaintiff  may  except  to  the  bail  given  by 
him  to  elapse,  and  the  bail  to  become  perfect,  it  will  be  no  longer 
competent  for  him  to  do  so."  "The  defendant,  by  submitting 
to  put  in  and  perfect  bail,  accedes  to  the  regularity  of  his  arrest, 
and  the  sufficiency  of  the  grounds  for  it." 

In  Barker  v.  Dillon,  1  C.  R.  (N.  S.)  206,  9  L.  O.  310,  the  same 
conclusion  is  come  to,  and  the  same  proposition  enounced.  In 
that  case,  however,  the  defendant  had  acquiesced  for  eighteen 
months,  and  allowed  his  bail  to  be  sued,  and  then  surrendered 
himself  in  discharge  of  their  liability,  before  making  the  appli- 
cation; under  which  circumstances,  his  acquiescence  in  the 
proceeding  was  abundantly  clear. 

The  test  as  established  by  sec.  204,  is  fully  maintained  in 
Wilmerding  v.  Moon,  8  How.  213,  where  it  was  held  that  a 
mere  delay  of  the  application  to  vacate,  was  no  bar  to  the 
motion;  and  that  an  order  of  arrest,  founded  on  extrinsic  facts, 
might,  where  bail  had  not  been  given,  be  vacated  upon  a  proper 
application,  at  any  time  before  the  defendant  had  been  charged 


228  ARREST  AND  BAIL. 

in  execution,  even  though  judgment  had  been  entered,  as  was 
there  the  case.  The  question,  as  to  whether  the  application 
could  or  could  not  be  entertained,  after  the  defendant  had  been 
so  charged,  was  declined  by  the  court. 

In  The  Columbus  Insurcmce  Company  v.  Force,  8  How.  353,  the 
court  doubted  whether  the  obtaining  further  time  to  answer,  or 
even  an  actual  answer,  unless  there  had  been  unreasonable 
delay,  would  be  a  waiver  of  the  irregularity  of  an  arrest  in  the 
same  suit. 

On  a  motion  to  vacate  an  order  of  arrest,  founded  on  affi- 
davits denying  the  plaintiff's  allegations,  the  court  will  weigh 
the  evidence  on  both  sides,  to  determine  whether  the  order  shall 
or  shall  not  stand,  and  decide  accordingly.  Falconer  v.  Elias, 
3  Sandf.  731 ;  1  C.  E.  (N.  S.)  155. 

In  Lithaner  v.  Turner,  1  C.  E.  (N.  S.)  210,  a  motion  to  vacate 
an  order  of  arrest  was  denied,  though  it  was  admitted,  that  an 
attachment  in  respect  of  the  same  cause  of  action  was  pending 
in  another  State.     See  also  Fowler  v.  Brook,  there  referred  to. 

A  motion  of  this  nature  is  the  only  proper  remedy,  where  the 
action  is  one  in  which  the  defendant  cannot  be  arrested.  Hol- 
brooh  v.  Homer,  1  C.  E.  (N.  S.)  406  ;  6  How.  86. 


§  78.    Bail  by  Defendant. 

Assuming  that  the  defendant  is  satisfied  that  no  grounds 
exist,  by  means  of  which  the  order  of  arrest  can  be  vacated,  or 
the  amount  of  bail  reduced,  by  means  of  a  special  application 
as  above  ;  or  if  his  application  for  that  purpose  have  failed,  two 
modes  are  open  to  him,  by  which  he  may  obtain  his  immediate 
release.  1st.  By  giving  bail;  or,  2d.  By  depositing  the  amount 
claimed.  These  proceedings  may  be  taken  by  him,  under  sec. 
186,  "at  any  time  before  execution."  After  judgment,  the 
plaintiff's  remedy  ceases  of  course  to  be  provisional,  and  bc- 
comea  absolute,  under  the  execution,  if  duly  issued.  See  sub- 
sequent chapter  on  that  subject. 

The  mode  in  which  bail  is  to  be  given  is  thus  prescribed  by 
sec.  187 : 

§  18V.  The  defendant  may  give  bail,  by  causing  a  written  under- 
taking to  be  executed  by  two  or  more  sufficient  bail,  stating  their  places 
of  residence  and  occupations,  to  tlie  effect  that  the  defendant  shall  at 


ARREST  AND  BAIL.  229 

all  times  render  himself  amenable  to  the  process  of  the  court,  during 
the  pendency  of  the  action,  and  to  such  as  may  be  issued  to  enforce 
the  judgment  therein;  or,  if  he  be  arrested  for  the  cause  mentioned  in 
the  third  subdivision  of  section  179,  an  undertaking  to  the  same  effect 
as  that  provided  by  section  211. 

In  cases  of  ordinary  arrest,  the  bail  will  be  discharged,  on 
surrender  of  the  defendant  in  due  time.  When,  however,  the 
arrest  is  in  respect  of  fraudulent  concealment  of  property,  the 
sureties  will  not  merely  be  responsible  for  the  safe  custody  of 
the  defendant,  but  also  for  the  value  of  the  property  claimed, 
under  the  provisions  of  sec.  211,  as  above  referred  to.  See  this 
subject  considered  in  the  succeeding  chapter.  This  distinction 
is  an  important  one,  and  must  not  be  lost  sight  of,  with  refer- 
ence to  the  liability  of  the  sureties  themselves.  The  disquali- 
fications under  which  various  parties  labor  in  respect  of  be- 
coming bail,  are  in  no  manner  affected  by  the  Code,  and 
remain  exactly  as  under  the  former  practice,  the  works  on 
which  subject  may  accordingly  be  referred  to  when  necessary. 
It  would  seem  from  Baker  v.  Swackhamer,  5  How.  251,  3  C.  K. 
248,  that,  when  the  defendant  is  a  permanent  resident,  a  less 
amount  of  bail  will  be  required  for  his  appearance,  than  when 
he  is  a  transient  person. 

The  qualifications  of  bail  under  the  Code  are  thus  prescribed 
by  sec.  194 : 

§  194.  The  qualifications  of  bail  must  be  as  follows: 

1.  Each  of  them  must  be  a  resident,  and  householder  or  freeholder, 
within  the  State. 

2.  They  must  each  be  worth  the  amount  specified  in  the  order  of 
arrest,  exclusive  of  property  exempt  from  execution;  but  the  judge, 
or  a  justice  of  the  peace,  on  justification,  may  allow  more  than  two  bail 
to  justify  severally,  in  amounts  less  than  that  expressed  in  the  order,  if 
the  whole  justification  be  equivalent  to  that  of  two  sufficient  bail. 

Where  the  proceedings  are  taken  in  a  court  of  limited  juris- 
diction, it  would  seem  that  the  sureties  ought  to  be  resident 
within  the  district  embraced  by  its  powers.  See  Herrick  v. 
Taylor,  1  C.  R  (1ST.  S.)  382.     (Note.) 

The  form  of  the  undertaking  to  be  signed  by  the  bail  will 
be  found  in  the  Appendix.  Their  affidavits  must  be  subjoined, 
to  the  effect  there  given,  and  strictly  following  the  words  of  the 


230  ARREST  AND  BAIL. 

section.  The  forms  ordinarily  sold  are  deficient  in  one  respecty 
as  not  specially  excluding  property  exempt  from  execution, 
and  are  therefore  unsafe,  unless  previously  altered  in  this  re- 
spect. The  document  must  also,  under  Eule  72  of  the  Supreme 
Court,  be  acknowledged  as  a  deed  of  real  estate,  before  it  can 
be  received  or  filed.  The  above  requisites  must  be  strictly 
complied  with,  or  the  proceeding  will  be  of  no  effect.  It  will 
be  better,  also,  that  the  residences  of  the  sureties  should  be 
stated  on  the  undertaking.  See,  as  to  appeals,  Blood  v.  Wilder, 
6  How.  446. 

The  undertaking,  when  perfected,  must  be  delivered  to  the 
sheriff,  who  is  bound  to  receive  the  bail,  if  sufficient,  and  to  re- 
lease the  defendant  thereupon ;  though  of  course  it  is  competent 
for  him  to  refuse  an  undertaking  deficient  in  any  respect,  either 
as  regards  the  sureties,  or  the  form  of  the  document  itself. 
The  sheriff  must  then,  "within  the  time  limited  by  the  order, 
deliver  the  order  of  arrest  to  the  plaintiff  or  attorney  by  whom 
it  is  subscribed,  with  his  return  endorsed,  and  a  certified  copy 
of  the  undertaking  of  the  bail."  See  sec.  192.  The  original 
remains  with  him,  until  a  failure  to  comply  has  taken  place, 
and  the  subsequent  directions  of  the  court  be  given,  as  hereafter 
specified. 

It  has  been  a  practice  with  the  sheriff  to  dispense  with  this 
acknowledgment,  and  also  with  the  affidavit  of  justification, 
unless  the  bail  be  excepted  to,  and  to  accept,  in  the  first  in- 
stance, a  simple  undertaking,  to  the  effect  prescribed.  Whether 
he  had  really  power  to  do  so  seemed  doubtful,  even  under  Kule 
76,  now  72,  as  it  originally  stood.  It  seems  still  more  so,  under 
the  recent  amendment  of  that  rule,  on  which  the  words,  "This 
rule  shall  not  apply  to  cases  when  the  duty  of  the  officer  in 
taking  security  is  prescribed  by  the  Code  of  Procedure,"  have 
been  stricken  out;  and  the  rule  is  made  generally  applicable, 
in  all  instances,  "  whenever  a  justice  or  other  officer  approves 
of  tin;  .security  to  be  given  in  any  case,"  without  any  distinction 
oi  exception  whatsoever. 

Under  Kule  8(J,  inserted  on  the  last  revision,  the  original 
affidavits  must  now  be  filed  by  the  sheriff  with  the  clerk,  within 
ten  days  after  the  arrest. 


ARREST  AND  BAIL.  231 

§  79.    Exception  and  Justification. 

Exception  by  Plaintiff.'] — If  the  plaintiff'  omit  to  except  to  the 
bail  within  the  ten  days  allowed  for  that  purpose,  he  is  bound 
by  the  proceeding,  and  the  sheriff  will  be  exonerated  from 
liability.  If,  on  the  contrary,  he  deem  it  insufficient,  he  may, 
by  sec.  192,  "  within  ten  days  thereafter,"  i.  e.,  after  the  delivery 
of  the  order  of  arrest,  with  the  sheriff's  return  as  above,  "serve 
upon  the  sheriff  a  notice  that  he  does  not  accept  the  bail ;  or  he 
shall  be  deemed  to  have  accepted  it,  and  the  sheriff  shall  be 
exonerated  from  liability."  The  notice  may  be  simply  in  the 
words  of  this  section,  being  of  course  properly  entitled,  adj 
dressed,  and  served. 

Notice  of  Justification.] — The  course  of  proceeding  to  be  adopt- 
ed by  the  sheriff,  on  the  receipt  of  such  notice,  is  thus  prescribed 
by  sec.  193 : 

§  193.  On  the  receipt  of  such  notice,  the  sheriff  or  defendant  may, 
within  ten  days  thereafter,  give  to  the  plaintiff  or  attorney  by  whom 
the  order  of  arrest  is  subscribed,  notice  of  the  justification  of  the  same, 
or  other  bail,  (specifying  the  places  of  residence  and  occupation  of  the 
latter,)  before  a  judge  of  the  court,  or  county  judge,  at  a  specified 
time  and  place,  the  time  to  be  not  less  than  five,  nor  more  than  ten 
days  thereafter.  In  case  other  bail  be  given,  there  shall  be  a  new 
undertaking,  in  the  form  prescribed  in  section  one  hundred  and  eighty- 
seven. 

Justification.] — The  mode  of  justification  is  then  pointed  out 
by  sec.  195 : 

§  195.  For  the  purpose  of  justification,  each  of  the  bail  shall  attend 
before  the  judge,  or  a  justice  of  the  peace,  at  the  time  and  place  men- 
tioned in  the  notice,  and  may  be  examined  on  oath,  on  the  part  of  the 
plaintiff,  touching  his  sufficiency,  in  such  manner  as  the  judge  or  justice 
of  the  peace,  in  his  discretion,  may  think  proper.  The  examination 
shall  be  reduced  to  writing,  and  subscribed  by  the  bail,  if  required  by 
the  plaintiff. 

N.  B.  It  is  evident  that  the  words  "justice  of  the  peace,"  in 
this  section,  and  also  in  sec.  194,  must  be  read  "county  judge;" 
the  correction  in  this  respect,  in  analogy  with  the  amendment 
in  sec.  193,  having  escaped  the  attention  of  the  Legislature. 


232  ARREST  AND  BAIL. 

The  period  for  justification  by  the  sureties,  may  be  extended 
beyond  the  limit  prescribed  in  the  notice,  on  good  cause  shown ; 
an  order  must,  however,  be  duly  obtained,  and  a  fresh  notice 
given.     Burns  v.  Bobbins,  1  C.  R.  62. 

A  re-justification  was  allowed  in  Hees  v.  Snell,  8  How.  185, 
on  a  technical  failure  by  the  sureties  to  attend  at  the  precise 
hour  appointed. 

The  justification  must,  under  Rule  84  of  the  Supreme  Court, 
take  place  "  within  the  county  where  the  defendant  shall  have 
been  arrested,  or  where  the  bail  reside."  The  plaintiff  or  his 
agent  is,  therefore,  bound  to  attend,  wherever  notice  may  be 
given  in  due  accordance  with  this  provision.  If,  on  the  con- 
trary, the  notice  be  given  for  the  wrong  county,  it  will  be  a 
nullity,  and  the  sheriff  will  not  be  discharged,  unless  the  plain- 
tiff waive  the  objection,  by  appearing  on  the  examination,  or 
otherwise  by  direct  acquiescence  in  the  proceeding. 

If,  on  the  justification,  more  than  two  bail  be  brought  forward, 
they  may,  under  sec.  194,  be  allowed  by  the  judge  "to  justify 
severally,  in  amounts  less  than  that  expressed  in  the  order,  if 
the  whole  justification  be  equivalent  to  that  of  two  sufficient 
bail,"  i.  e.,  equivalent  to  at  least  double  the  amount  specified 
in  the  order. 

If  the  bail  fail  to  justify,  the  plaintiff  should  obtain  from  the 
judge  a  certificate  to  that  effect,  as  evidence  of  the  fact,  and  in 
order  to  the  establishment  of  the  sheriff's  liability,  if  necessary. 
In  this  case,  it  would  seem  that  the  sureties  themselves  are  dis- 
charged from  all  responsibility.  See  Ward  v.  Syme,  4  Comst. 
161  ;  1  C.  R.  (N.  S.)  266.  Where  the  contrary  is  the  case,  the 
course  to  be  adopted  on  behalf  of  the  sheriff  or  defendant,  is 
thus  prescribed  by  sec.  196: 

§  190.  If  the  judge  or  justice  of  the  peace  find  the  bail  sufficient,  he 
shall  annex  Um;  examination  to  the  undertaking,  endorse  his  allowance 
thereon,  and  cause  them  to  be  filed  with  the  clerk;  and  the  sheriff  shall 
thereupon  he  exonerated  from  liability. 

Disposal  of  Undertaking.'] — It  will  be  observed  that,  under 
these  circumstances,  the  under  taking  passes  from  the  custody 
of  tin-  sheriff  into  that  of  the  clerk,  in  whose  hands  it  remains, 
subject  to  the  further  disposition  of  the  court.  There  is  no 
report,^!  deei.-'iou  on  the  subject;  but  it  would  probably  be 
held,  that  the  proper  clerk  to  be  intrusted  with  the  custody  of 


ARREST  AND  BAIL  233 

the  instrument  in  question,  will  be  the  clerk  of  the  court  or 
county  in  which  the  action  is  brought ;  or  of  that  in  which  the 
venue  is  laid,  if  in  the  Supreme  Court. 

The  same  is  doubtless  the  case  in  relation  to  the  original 
affidavits,  which  must  now  be  filed  within  ten  days  after  the 
arrest,  under  Eule  89. 

§  80.    Surrender  by  Bail. 

The  mode  in  which  it  is  competent  for  the  bail  to  discharge 
themselves  from  their  liability,  by  a  surrender  of  the  defendant, 
is  thus  prescribed  by  sections  188  and  189 : 

§  188.  At  any  time  before  a  failure  to  comply  with  the  undertaking, 
the  bail  may  surrender  the  defendant  in  their  exoneration,  or  he  may 
surrender  himself  to  the  sheriff  of  the  county  where  he  was  arrested, 
in  the  following  manner  : 

1.  A  certified  copy  of  the  undertaking  of  the  hail  shall  be  delivered 
to  the  sheriff,  who  shall  detain  the  defendant  in  his  custody  thereon,  as 
upon  an  order  of  arrest,  and  shall,  by  a  certificate  in  writing,  acknow- 
ledge the  surrender. 

2.  Upon  the  production  of  a  copy  of  the  undertaking  and  sheriff's 
certificate,  a  judge  of  the  court,  or  county  judge,  may,  upon  a  notice 
to  the  plaintiff  of  eight  days,  with  a  copy  of  the  certificate,  order  that 
the  bail  be  exonerated  ;  and,  on  filing  the  order  and  the  papers  used 
on  said  application,  they  shall  be  exonerated  accordingly.  But  this  sec- 
tion shall  not  apply  to  an  arrest  for  the  cause  mentioned  in  subdivision 
3  of  section  1*79,  so  as  to  discharge  the  bail  from  an  undertaking,  given 
to  the  effect  provided  by  section  211. 

§  189.  For  the  purpose  of  surrendering  the  defendant,  the  bail,  at 
any  time  or  place,  before  they  are  finally  charged,  may  themselves 
arrest  him ;  or,  by  a  written  authority,  endorsed  on  a  certified  copy 
of  the  undertaking,  may  empower  any  person  of  suitable  age  and  dis- 
cretion to  do  so. 

In  Re  Taylor,  7  How.  212,  it  was  considered  by  Humphrey, 
county  judge,  that  it  was  competent  for  any  one  or  more  of 
several  bail,  to  give  the  authority  above  provided,  for,  without 
the  concurrence  of  all  concerned ;  and  also,  that  though  they  had 
failed  to  justify,  the  bail  in  that  case  were  competent  to  surren- 
der their  principal,  and  authorized  to  take  all  necessary  steps 
for  that  purpose. 


234  ARREST  AND  BAIL. 

It  will  be  seen  that,  in  cases  falling  under  subdivision  3  of 
sec.  179,  the  mere  surrender  of  the  defendant  does  not  discharge 
the  bail  from  farther  pecuniary  liability,  as  before  noticed. 

The  sheriff,  when  liable  as  bail,  in  consequence  of  the  failure 
of  the  defendant's  sureties  to  justify,  is  entitled  to  the  same 
privileges  as  bail  in  other  cases.  '  At  any  time  before  the  de- 
fendant is  actually  charged  in  execution,  he  may  discharge 
himself  by  giving  substituted  bail;  but,  afterwards,  his  privi- 
lege in  this  respect  is  gone.  It  is  still  competent  for  him,  how- 
ever, to  claim  the  same  right  to  relief  as  bail  in  other  cases,  (see 
sec.  191,)  if,  within  the  twenty  days  allowed  by  that  section 
after  action  brought,  he  obtain,  by  any  means,  the  lawful  cus- 
tody of  the  defendant,  so  that  he  can  be  retained  on  the  execu- 
tion. Buchnan  v.  Carnley,  9  How.  180 ;  Sartos  v.  Merceques,  9 
How.  188. 


§81.  Remedies  against  Bail. 

The  plaintiff's  remedy  against  the  bail,  if  they  fail  to  sur- 
render the  defendant,  is  thus  provided  for  by  section  190 : 

§  190.  In  case  of  failure  to  comply  with  the  undertaking,  the  bail 
may  be  proceeded  against,  by  action  only. 

For  this  purpose,  an  application  should  be  previously  made 
to  the  court,  for  an  order  that  the  undertaking  may  be  delivered 
out  to  the  plaintiff,  by  the  sheriff  or  cleric,  as  the  case  may  be. 
The  order  may  be  obtained  ex  parte,  and  need  not  be  served 
on  the  opposite  party.  The  facts  establishing  the  failure 
should,  however,  be  shown  by  a  short  affidavit  to  that  effect. 

In  an  action  against  sureties,  under  a  bond  given  on  the 
arrest  ol*  a  defendant,  the  fact  that  the  party  bringing  the  action 
is  the  aggrieved  party,  must  be  averred  on  the  complaint.  If 
not,  the  action  cannot  be  sustained.  Raynor  v.  Clark,  7  Barb. 
581;  3C.  R.280. 

In  an  action  against  bail,  tiny  cannot  impeach  the  legality 
of  tlic  original  arrest;  the  undertaking  imports  their  liability, 
and  they  are  estopped  from  controverting  it.  Their  only  reme- 
dy is  to  surrender  their  principal.  Gregory  v.  Levy,  12  Barb. 
612:  7  How.  87. 


ARREST  AND  BAIL.  235 

§  82.  Exoneration    of  Bail. 

The  following  provisions  are  made  by  sec.  191,  in  relation  to 
the  circumstances  under  which  the  bail  may  be  exonerated, 
after  action  so  brought  against  them : 

§  191.  The  bail  may  be  exonerated,  either  by  the  death  of  the  de- 
fendant, or  his  imprisonment  in  a  state  prison,  or  by  his  legal  discharge 
from  the  obligation  to  render  himself  amenable  to  the  process,  or  by 
his  surrender  to  the  sheriff  of  the  county  where  he  was  arrested,  in 
execution  thereof;  within  twenty  days  after  the  commencement  of  the 
action  against  the  bail,  or  within  such  further  time  as  may  be  granted 
by  the  court. 

In  Barker  v.  Russell,  1  C.  E.  (N.  S.)  5,  the  bail  were  dis- 
charged, on  the  ground,  there  taken,  that  the  defendant  was 
not  liable  to  arrest  at  all,  on  account  of  an  omission  to  aver 
fraud  on  the  pleadings.  This  decision  was,  however,  reversed 
by  the  General  Term,  Barker  v.  Russell,  11  Barb.  303,  1  C.  E. 
(N.  S.)  57,  though  a  temporary  stay  of  proceedings  was  granted, 
to  enable  them  to  surrender  their  principal. 

In  Gregory  v.  Levy,  12  Barb.  610 ;  7  How.  37,  it  was  held 
that  a  surrender  and  exoneration  was  the  only  remedy  open  to 
bail,  who  strove  to  controvert  the  legality  of  the  original  order 
of  arrest,  from  doing  which  they  were  estopped  by  their  under- 
taking. 

In  Holbrook  v.  Homer,  6  How.  86,  1  C.  E.  (K  S.)  406,  it  was 
also  held,  that  an  exoneration  could  not  be  applied  for,  on  the 
ground  that  the  defendant  was  not  liable  to  be  arrested.  The 
only  remedy,  under  such  circumstances,  was  a  motion  by  the 
defendant,  under  sec.  204.  The  case  did  not  fall  within  the 
provisions  of  sec.  191.  The  question  as  to  the  effect  of  a  sur- 
render does  not  appear  to  have  come  up  for  consideration. 

A  sheriff,  who  has  become  liable,  as  bail,  by  the  omission 
of  the  defendant's  sureties  to  justify,  is  entitled  to  the  full 
benefit  of  this  section,  and  to  the  same  remedies  as  bail  in  other 
cases.  No  process  is  necessary  to  enable  him  to  arrest  the 
defendant ;  and  if,  during  the  twenty  days  allowed,  he  can  by 
any  lawful  means  obtain  the  custody  of  the  person  of  the  latter, 
so  that  he  can  be  held  on  execution,  his  liability  will  be  dis- 
charged. Buckman  v.  Carnley,  9  How.  180 ;  Sartos  v.  Merce- 
ques,  9  How.  188. 


236  ARREST  AND  BAIL. 

§  83.  Deposit  in  lieu  of  Bail. 

Mode  of  making.'] — Where,  however,  the  defendant  is  either 
unable  or  unwilling  to  procure  bail,  it  lies  in  his  power  to  ob- 
tain his  discharge,  at  the  time  of  his  arrest,  by  means  of  a  depo- 
sit in  the  hands  of  the  sheriff.  The  following  are  the  provisions 
on  this  subject,  as  contained  in  sections  197  and  198: 

§  197.  The  defendant  may,  at  the  time  of  his  arrest,  instead  of  giv- 
ing bail,  deposit  with  the  sheriff  the  amount  mentioned  in  the  order. 
The  sheriff  shall  thereupon  give  the  defendant  a  certificate  of  the 
deposit,  and  the  defendant  shall  be  discharged  out  of  custody. 

§  198.  The  sheriff  shall,  within  four  days  after  the  deposit,  pay  the 
same  into  court ;  and  shall  take  from  the  officer  receiving  the  same,  two 
certificates  of  such  payment,  the  one  of  which  he  shall  deliver  to  the 
plaintiff,  and  the  other  to  the  defendant.  For  any  default  in  making 
such  payment,  the  same  proceedings  may  be  had  on  the  official  bond  of 
the  sheriff,  to  collect  the  sum  deposited,  as  in  other  cases  of  delinquency. 

Withdrawal  of,  on  giving  Bail.] — In  this  event,  it  is  competent 
for  the  defendant  afterwards  to  withdraw  the  amount  so  depo- 
sited, on  giving  bail  in  lieu  thereof.  This  provision  is  made  by 
section  199: 

§  199.  If  money  be  deposited,  as  provided  in  the  last  two  sections,  bail 
may  be  given  and  justified  upon  notice,  as  prescribed  in  sec.  193,  any 
time  before  judgment ;  and,  thereupon,  the  judge  before  whom  the  jus- 
tification is  had,  shall  direct,  in  the  order  of  allowance,  that  the  money 
deposited  be  refunded  by  the  sheriff  to  the  defendant,  and  it  shall  be 
refunded  accordingly. 

Application  of  when  not  ivithdraivn .] — The  application  of  the 
amount  deposited  as  above,  where  bail  is  not  subsequently  given, 
is  thus  prescribed  by  sec.  200: 

g  200.  Where  money  shall  have  been  so  deposited,  if  it  remain  on 
deposit  at  tin'  time  of  an  order  or  judgment  for  the  payment  of  money 
to  the  plaint  ill,  the  clerk  shall,  under  the  direction  of  the  court,  apply 
the  same  in  satisfaction  thereof,  and,  after  satisfying  the  judgment, 
shall  refund  the  arpltU,  if  any,  to  the  defendant.  If  the  judgment  be 
in  favor  of  the  defendant,  the  Clerk  shall  refund  to  him  the  whole  sum 
deposited  and  remaining  unapplied. 


,  REPLEVIN.  237 

§  84.  Concluding  Remarks. . 

Execution  against  Person,  Effect  of.'] — If,  on  judgment  being 
recovered,  and  execution  issued  against  the  person,  the  defendant 
be  still  in  custody,  the  provisional  arrest,  will,  of  course  be 
merged  in  that  under  the  subsequent  process.  If,  on  the  con- 
trary, the  defendant  be  out  on  bail,  his  arrest  on  the  execution 
may  take  place,  and,  if  made,  will  exonerate  the  sureties. 

Discharge  by  Operation  of  Law,  or  otherwise.'] — It  remains  to 
consider  the  cases  in  which  a  defendant  may  be  discharged  from 
arrest,  under  special  circumstances,  or  by  operation  of  law. 

Insanity,  either  at  or  subsequent  to  the  arrest,  forms  no 
ground  for  an  unconditional  discharge.  The  only  manner  in 
which  a  defendant  can  be  removed  from  the  legal  custody,  is 
under  the  act  in  relation  to  lunatic  asylums,  passed  7th  April, 
1842,  and  that,  during  his  insanity  only.  Bush  v.  Pettibone,  4 
Comst.  300 ;  1  C.  E.  (N".  S.)  264. 

A  defendant  will  be  released  from  imprisonment  by  operation 
of  law,  on  his  discharge  as  an  insolvent,  under  the  provisions  of 
title  I.,  chap.  V.,  part  II.  of  the  Eevised  Statutes,  particularly  of 
articles  3,  4,  5,  6  and  7  of  that  title.  See  2  E.  S.  pp.  1  to  52. 
The  proceedings  in  relation  to  a  discharge  of  this  nature  are  in 
nowise  affected  by  the  Code,  and  belong  entirely  to  the  old 
practice. 


CHAPTER     II, 

OF  CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 


§  85.  General  Characteristics  of  Replevin  under  Code. 

The  provisions  of  the  Code,  in  this  respect,  are  clearly 
intended  as  a  substitute  for  the  provisional  relief  heretofore 
obtained  in  the  action  of  replevin,  under  the  old  practice. 
Roberts  v.  Randel,  3  Sandf.  707 ;  5  How.  327 ;  3  C.  E.  190 ;  9  L. 
O.  144;  McCurdy  v.  Brown,  1  Duer,  101 ;  Wilson  v.  Wheeler,  6 
How.  49 ;  1  C.  E.  (N.  S.)  402.     In  the  latter  case,  it  was  con- 


238  REPLEVIN. 

sidered  that  the  former  practice  on  replevin  was  still  in  force,  in 
many  respects  in  an  action  of  this  nature,  which  seems  clearly 
to  be  the  case,  inasmuch  as  the  provisions  made  by  the  chapter 
of  the  Code  now  under  immediate  consideration,  are  only  partial 
in  their  operation,  and  relate  to  the  provisional  remedy  alone, 
without  in  any  manner  affecting  the  subsequent  proceedings,  for 
the  decision  of  the  controversy,  as  to  whether  the  plaintiff  is  or 
is  not  entitled  to  the  property  itself,  in  respect  of  which  the 
provisional  remedy  is  sought  in  the  first  instance. 

The  different  points  in  relation  to  the  action  of  replevin,  con- 
sidered as  an  action,  and  apart  from  the  provisional  remedy 
obtainable  at  the  outset,  will  be  hereafter  considered  under  their 
proper  heads.  A  specific  equitable  lien  cannot  be  enforced  in 
an  action  for  replevin ;  Otis  v.  Sill,  8  Barb.  102 ;  that  remedy 
is  only  applicable  to  cases  where  the  possession  of  the  property 
itself  is  sought,  not  where  a  charge  is  merely  claimed  upon  it. 
In  this  form  of  action,  the  possession  of  the  property  may  be 
sought,  with  or  without  damages  for  the  withholding,  (sec.  167, 
subdivision  6;)  and,  under  sec.  277,  judgment  may  be  taken, 
either  for  the  possession  of  the  property,  or  for  its  value,  in  case 
a  delivery  cannot  be  had,  with  damages  for  its  detention.  It 
would  seem  from  the  case  of  Suydam  v.  Jenkins,  3  Sandf.  614, 
that  it  is  competent  for  the  plaintiff  to  elect  to  take  judgment 
for  the  value  of  the  goods  claimed,  instead  of  their  return,  and 
that  he  can  equally  recover  damages ;  that,  in  such  case,  the 
assessable  value  of  the  goods  will  be  that  at  the  time  of  the 
replevin,  and  not  at  that  of  such  election ;  and  that,  if  such 
value  be  an  insufficient  redress  for  the  injury,  the  deficiency 
may  be  made  good  in  the  estimate  of  damages;  and  the  law  as 
to  the  measure  of  the  latter  is  fully  laid  down. 

Although  the  claim  for  the  recovery  of  the  property,  or  judg- 
ment  for  Its  value,  is  maintainable  in  the  action  of  replevin,  the 
provisional  remedies  now  under  consideration  cannot  be  ob- 
tained  in  a  proceeding  in  the  nature  of  an  action  of  trespass 
"cfe  bonis  asportatis"  under  the  old  practice,  and  in  which 
damages  only,  and  not  the  return  of  the  property  itself,  are 
•  lit,  by  tli"  complaint.  An  action  of  that  nature  falls  under 
lion  167,  . tikI  is  incompatible  with  replevin, 
which  falls,  on  the  contrary,  within  subdivision  6;  jSfpalding  v. 
Spalding^  8  How.  297;  1  0.  R.  64;  and  it  was  there  beld  that 
the  proa  edings  could  not  be  amended,  under  the  provisions  in 


REPLEVIN.  239 

relation  to  amendments,  as  they  stood  in  the  Code  of  1848. 
This  latter  conclusion  was  dissented  from  in  Dows  v.  Green,  3 
How.  377,  and  an  amendment  was  there  allowed  under  similar 
circumstances ;  the  decision  otherwise  confirming  the  authority 
of  Spalding  v.  Spalding,  as  to  the  incompatibility  of  obtaining 
the  provisional  remedies  applicable  to  the  action  of  replevin,  in 
one  in  which  relief  for  the  trespass  only  is  sought,  and  not  the 
recovery  of  the  property  itself.  In  Maxwell  v.  Farnam,  7  How. 
236,  it  was  similarly  held  that  the  redelivery  of  property,  and 
the  payment  of  damages  for  its  conversion,  are  claims  incom- 
patible in  their  nature,  and  incapable  of  joinder  in  the  same 
action. 

In  Ghappel  v.  Skinner,  6  How.  338,  it  was,  in  like  manner, 
decided  that  the  remedy  of  obtaining  possession  of  the  goods, 
by  means  of  replevin,  was  incompatible  with  a  previous  arrest 
under  section  179.  See  citation  of  the  case  in  the  preceding 
chapter.  The  plaintiff  cannot  have  both  remedies  simulta- 
neously, and  must  make  his  election  between  them.  The  con- 
clusion come  to  by  the  court  is  thus  expressed : 

"The  plaintiff's  course  was  to  have  pursued  the  proceedings 
pointed  out  in  chapter  II.  above  referred  to,"  i.  e.,  that  now 
under  consideration,  "which  do  not  authorize  the  defendant's 
arrest ;  and,  if  the  property  could  not  be  found,  and  the  case  is 
within  the  3d  subdivision  of  section  179,  to  obtain  an  order,  and 
have  the  defendant  arrested ;  but,  in  that  case,  he  cannot  after- 
wards obtain  the  possession  of  the  property  pending  the  action. 
"Having  in  this  case  elected  to  have  the  defendant  arrested 
and  held  to  bail  in  the  first  instance,  under  one  of  the  subdi- 
visions of  sec.  179, 1  think  the  plaintiff  was  bound  to  wait,  until 
he  was  entitled  by  the  judgment  of  the  court  to  the  possession 
of  the  property,  before  causing  it  to  be  delivered  to  him.  I  am 
not  able  to  perceive  that  the  defendant  has  done  any  thing  by 
which  he  waived  the  right  to  have  the  property  restored  to 
him." 

In  reference  to  the  circumstances  under  which  an  action  of 
this  description  can  or  cannot  be  maintained,  when  the  defend- 
ant has  parted  with  the  possession  of  the  property,  see  the  last 
chapter,  and  the  cases  of  Roberts  v.  Handel,  Van  Neste  v.  Conover, 
Merrick  v.  Suydam,  Hem-in  v.  Nagle,  Brockivay  v.  Bitmap,  Pike  v. 
Lent,  and  Mulvey  v.  Davison,  there  cited. 

It  appears  from  these  cases  that  replevin  is  not  maintainable 


240  •     REPLEVIN. 

against  a  person  who  lias,  bond  fide,  parted  with  the  possession 
of  the  property  claimed,  before  the  suit  for  its  recovery  has  been 
commenced ;  but  otherwise,  in  cases  where  such  property  has 
been  removed,  in  expectation  of  a  proceeding  for  its  recovery, 
and  in  fraud  of  that  proceeding. 

The  plaintiff  in  replevin  can  only  recover  upon  a  legal  title ; 
he  must  show,  as  heretofore,  an  absolute  or  special  property, 
giving  him  an  immediate  right  to  the  possessionof  the  goods 
claimed.  Where  xi  lien  is  relied  on,  actual  possession  of  the 
property  is  indispensable,  and  a  mere  equitable  lien  cannot  be 
so  enforced,  but  must  be  asserted  in  a  specific  suit  for  that  pur- 
pose. If  the  title  set  up  in  the  complaint  be  denied  by  the 
answer,  the  defendant  is  not  bound  to  prove  his  right  to  the 
goods  in  question,  till  that  of  the  plaintiff  has  been,  prima  facie, 
established ;  and,  if  the  latter  fail  to  prove  his  title,  the  former 
is  entitled  to  a  judgment  for  the  value  of  the  goods,  if  taken. 
McCurdy  v.  Brown,  1  Duer,  101.  See,  also,  Roberts  v.  Randel, 
above  cited. 

To  maintain  an  action  of  replevin,  a  previous  demand  of  the 
property  is  not  necessary,  unless  where  the  defendant  is  an  in- 
nocent bailee  or  holder.     Pringle  v.  Phillips,  5  Sandf.  157. 

The  possession  of  a  document  of  no  value  on  its  face,  may  be 
recovered  in  this  form  of  action,  and  evidence  to  prove  its 
actual  value  ma}''  be  given.  So  held  with  reference  to  a  ware- 
house entry,  in  Knehue  v.  Williams,  1  Duer,  597 ;  11  L.  0. 187. 

The  recovery  and  collection  of  a  judgment  for  value,  in  this 
form  of  action,  transfers  the  title  to  the  property  itself,  and 
will  act  as  an  estoppel  on  a  subsequent  claim  of  title.  Russell  v. 
Gray,  11  Barb.  541.    See,  also,  Austin  v.  Chapman,  11  L.  O.  103. 

An  action  of  this  nature  will  not  lie,  as  between  the  owner  of 
goods  and  a  constable,  for  property  in  the  latter's  hands,  by 
virtue  of  an  attachment,  unless  such  property  be  such  as  is  ex- 
empted from  attachment.  ".Replevin  will  not  lie  for  property 
in  the  «'n  tody  of  the  law."    Keyserv.  Walcrhury,  3  C.  R.  233. 

The  above  doctrine  must,  however,  be  received  with  some 
qualification,  as,  for  instance,  the  case  of  a  disputed  execution, 
or  an  illegal,  though  actual  levy;  in  which  cases,  and  many  simi- 
lar ones  that  might  be  adduced,  where  the  legality  of  the  actual 
custody  ed,  replevin  would  clearly  bo  not  only  an  ad- 

missible,  but  the  proper  remedy. 

The  questions  in  relation  to  the  action  of  replevin,  generally 


REPLEVIN.      '  241 

considered,  having  thus  been  adverted  to,  we  now  approach  the 
subject  of  the  provisional  remedy  immediately  under  consider- 
ation. 

§  86.    Provisional  Remedy — how  obtained. 

This  remedy  may,  under  sec.  206,  be  obtained  in  an  action  of 
this  nature,  "at  the  time  of  issuing  the  summons,  or  at  any 
time  before  answer."  It  is,  therefore,  only  applicable  to  the 
outset  of  the  action,  and,  if  delayed  until  after  the  service  of  the 
complaint,  may  be  frustated,  by  an  answer  being  put  in  by  the 
defendant. 

It  is  obvious,  that  the  proper  course  will  be  to  draw  the  sum- 
mons, and  the  necessary  papers  for  the  application  for  the 
provisional  remedy,  at  the  same  time;  to  apply  to  the  court 
thereupon;  and  then  to  serve  the  summons,  and  lodge  the 
affidavit  with  the  sheriff  concurrently. 

Affidavit,  Form  of.'] — In  order  to  the  obtaining  of  the  provi- 
sional remedy,  an  affidavit  must  be  prepared  as  follows,  in  the 
manner  prescribed  by  sec.  207 : 

§  207.  Where  a  delivery  is  claimed,  an  affidavit  must  be  made  by 
the  plaintiff,  or  by  some  one  in  his  behalf,  showing, 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed,  (particu- 
larly describing  it,)  or  is  lawfully  entitled  to  the  possession  thereof,  by 
virtue  of  a  special  property  therein,  the  facts  in  respect  to  which  shall 
be  set  forth. 

2.  That  the  property  is  wrongfully  detained  by  the  defendant. 

3.  The  alleged  cause  of  the  detention  thereof,  according  to  his  best 
knowledge,  information  and  belief. 

4.  That  the  same  has  not  been  taken  for  a  tax,  assessment,  or  fine, 
pursuant  to  a  statute ;  or  seized  under  an  execution  or  attachment 
against  the  property  of  the  plaintiff;  or,  if  so  seized,  that  it  is,  by  sta- 
tute, exempt  from  such  seizure  ;  and, 

5.  The  actual  value  of  the  property. 

A  form  of  this  affidavit  is  given  in  the  Appendix.  The  pro- 
perty must,  of  course,  be  correctly  and  fully  described. 

An  allegation  by  the  plaintiff,  that  he  is  "owner"  of  the 
property,  is  sufficient,  under  subdivision  1.  The  facts  as  to  his 
16 


242  REPLEVIN. 

right  need  only  be  set  forth,  when  he  claims,  in  the  words  of 
the  section,  "  a  special  property  therein."  Burns  v.  Bobbins,  1 
C.  E.  62.  The  same  doctrine  is  maintained  in  Vanderburgh  v. 
Van  Valkenburgh,  8  Barb.  217,  (reported  on  another  point,  1  C. 
E.  (N.S.)  169,)  below  cited  under  the  head  of  Pleading. 

Where,  however,  a  special  property  is  claimed,  the  facts  as 
to  that  special  property  must  be  clearly  set  out,  as  concisely  as 
practicable,  but,  at  the  same  time,  with  sufficient  fulness.  To 
give  a  general  precedent  would  of  course  be  impracticable,  as 
the  statement  will  necessarily  be  one  of  fact,  applicable  to  the 
particular  case  only.  The  same  remark  may  be  made  as  to  that 
of  the  alleged  cause  of  detention  by  the  defendant. 

The  questions  as  to  the  extent  to  which  property  is  exempt 
from  seizure,  will  be  hereafter  considered  under  the  head  of 
Execution. 

That  as  to  the  form  of  affidavit  "showing"  such  exemption, 
has  given  rise  to  two  decisions  directly  contradictory  to  each 
other.  In  Spalding  v.  Spalding,  3  How.  297,  1  C.  E.  64,  the  court 
held,  that,  to  conform  to  the  requirements  of  this  section,  the 
affidavit  must  show  that  the  property  claimed  to  be  exempt  from 
seizure,  is  so  exempt,  by  a  detailed  statement  of  the  facts.  By 
Boberts  v.  Willard,  1  C.  E.  100,  the  above  decision  was  overruled 
in  terms,  the  learned  judge  saying  he  doubted  not  that  the  fact 
of  exemption  might  be  shown,  by  a  statement  of  that  fact  upon 
the  advice  of  counsel,  after  a  full  statement  of  all  the  facts  of  the 
case  to  such  counsel,  before  such  advice  was  given ;  and,  per- 
haps, by  a  naked  allegation  of  the  party  in  his  affidavit  that  the 
property  was  so  exempt,  provided  that  allegation  be  made  posi- 
tively. A  statement  upon  mere  belief  will  be  insufficient  under 
any  circumstances,  (same  case,)  and  a  short  allegation  of  the 
facts  will  evidently  be  the  more  expedient  course  in  all  in- 
stances. See  in  relation  to  the  subject  of  exemption  in  general, 
( ble  v.  Stevens,  9  Barb.  676. 

It  is,  of  course,  essential  to  the  validity  of  the  affidavit  under 
the  above  provisions,  that  some  value  .should  be  stated  on  its 
face,  1"  comply  with  subdivision  5.  That  value  may,  however, 
be  arbitrary,  and  have  reference  to  extrinsic  circumstances. 
Thus,  replevin  was  held  to  be  maintainable  for  a  warehouse 
entry,  though  bearing  no  actual  value  on  its  face.  Knehue  v. 
Willwm,  I   Doer,  597;  ll  L.  O.  1*7. 


REPLEVIN.  243 

The  affidavit  in  these  cases  will  be  irregular,  if  sworn  before 
the  plaintiff's  attorney.  Anon.,  4  How.  290.  Any  irregularity 
in  that  part  of  the  proceedings  will,  however,  be  waived  by  the 
subsequent  unconditional  appearance  of  the  defendant.  Roberts 
v.  Willard,  1  0.  E.  100,  above  cited. 

In  Spalding  v.  Spalding,  above  cited,  it  was  held  that  the 
original  affidavits,  if  defective,  may  be  amended  by  subsequent 
ones,  on  a  motion  to  set  aside  the  proceedings. 

Rtauisition  to  Sheriff.] — The  affidavit  being  prepared,  an  en- 
dorsement must  be  made  upon  it  by  or  on  behalf  of  the  plaintiff, 
as  directed  by  sec.  208,  in  the  following  terms : 

§  208.  The  plaintiff  may,  thereupon,  by  an  endorsement  in  writing 
upon  the  affidavit,  require  the  sheriff  of  the  county  where  the  property 
claimed  may  be,  to  take  the  same  from  the  defendant,  and  deliver  it  to 
the  plaintiff. 

The  signature  of  the  plaintiff's  attorney  to  this  requisition, 
though  not  expressly  prescribed,  will  doubtless  be  held  suffi- 
cient. 

Undertaking,  Form  of;  Delivery  to  Sheriff — SJierijfs  Duty 
thereon.'] — The  affidavit,  and  notice  endorsed,  most  then  be  deli- 
vered to  the  sheriff,  accompanied  by  an  undertaking,  as  thus 
prescribed  by  sec.  209 : 

§  209.  Upon  the  receipt  of  the  affidavit  and  notice,  with  a  written 
undertaking,  executed  by  one  or  more  sufficient  sureties,  approved  by 
the  sheriff,  to  the  effect  that  they  are  bound,  in  double  the  value  of  the 
property  as  stated  in  the  affidavit,  for  the  prosecution  of  the  action ; 
for  the  return  of  the  property  to  the  defendant,  if  return  thereof  be 
adjudged  ;  and  for  the  payment  to  him  of  such  sum  as  may,  for  any 
cause,  be  recovered  against  the  plaintiff;  the  sheriff  shall  forthwith 
take  the  property  described  in  the  affidavit,  if  it  be  in  the  possession  of 
the  defendant  or  his  agent,  and  retain  it  in  his  custody.  He  shall  also, 
without  delay,  serve  on  the  defendant  a  copy  of  the  affidavit,  notice, 
and  undertaking,  by  delivering  the  same  to  him  personally,  if  he  can  be 
found,  or  to  his  agent,  from  whose  possession  the  property  is  taken  ;  or, 
if  neither  can  be  found,  by  leaving  them  at  the  usual  place  of  abode  of 
either,  with  some  person  of  suitable  age  and  discretion. 

The  form  of  this  undertaking  will  be  found  in  the  Appendix. 
It  is  subject  to  the  same  general  conditions  as  those  treated  of 
in  the  last  chapter;  the  sureties  must  subjoin  the  usual  affidavit, 


244  REPLEVIN. 

and  it  must  be  duly  proved  and  acknowledged  under  Eule  72. 
See,  also,  Anon.,  4  How.  290. 

The  sheriff  must  endorse  his  approval  in  writing,  on  the 
undertaking.  Burns  v.  Bobbins,  1  C.  E.  62.  By  the  same  case 
the  following  points  are  also  decided :  1.  That  a  party  to  a  suit 
cannot  be  properly  taken  by  the  sheriff  as  a  surety;  2.  That,  if 
the  name  of  a  party  has  been  inserted  jointly  with  that  of  an- 
other, the  sheriff  may  erase  the  former,  provided  he  approves 
of  the  undertaking  with  one  surety  only  ;  3.  That  if  he  origin- 
ally intended  to  require  two,  then  he  may  require  another  name 
to  be  inserted  in  the  place  of  that  of  the  party,  before  he 
approve;  but,  4.  That  no  change  can  be  so  made  in  the  under- 
taking, unless  the  original  surety  assents  to  it. 

An  undertaking  duly  given  stands  in  the  place  of,  and  effects 
a  change  in  the  title  to  the  property.  Austin  v.  Chapman,  11 
L.  O.  103.  See  likewise  Bussell  v.  Gray,  11  Barb.  541,  before 
cited  as  to  the  similar  effect  of  an  actual  recovery. 

Sheriffs  Course  of  Proceeding^] — On  lodgment  with  the  sheriff 
of  the  affidavit,  notice,  and  undertaking,  as  above,  and,  on 
approval  by  him  of  the  latter,  the  proceeding  is  complete,  no 
application  to  the  court  being  necessary.  The  sheriff  then 
seizes  the  property,  giving  notice  to  the  defendant  as  above 
prescribed.  If  he  seize  the  goods  of  a  wrong  party,  he  will  be 
liable  under  his  official  bond,  and  is  answerable  for  the  acts  of 
his  deputies.  See  The  People  v.  Schuyler,  4  Comst.  173.  Nor 
will  the  fact  that  he  was  directed  to  take  the  specific  goods  in 
question,  be  any  protection  to  him  under  these  circumstances. 
Stimpson  v.  Beynolds,  14  Barb.  506. 

The  powers  of  the  sheriff,  in  relation  to  seizure  of  the  pro- 
perty, are  thus  prescribed  by  sec.  214 : 

§  214.  If  the  property,  or  any  part  thereof,  be  concealed  in  a  build- 
ing or  enclosure,  the  sheriff  shall  publicly  demand  its  delivery.  If  it 
be  not  delivered,  he  shall  cause  the  building  or  enclosure  to  be  broken 
open,  and  take  ih^  property  into  his  possession;  and,  if  necessary,  he 
may  call  to  his  aid  the  power  of  his  county. 

§  87.    Defendants  Course  of  Action,  and  ulterior  Pro- 
ceedings. 

On  seizure  of  the  property,  three  courses  are  open  to  the 
defendant: 


REPLEVIN.  245 

1.  He  may  move  to  set  aside  the  plaintiff' s  proceedings,  on 
the  ground  of  irregularity. 

2.  He  may  require  the  plaintiff's  sureties  to  justify ;  or, 

3.  He  may  give  counter  security,  for  the  purpose  of  retaining 
the  property. 

Motion  to  set  aside.'] — If  he  move  to  set  aside,  the  motion  must 
be  noticed  at  once,  and  before  excepting  to  the  sureties,  or 
taking  any  other  proceeding,  and  an  interim  stay  of  proceed- 
ings, and  extension  of  the  time  to  except,  or  give  counter 
security,  must  be  at  once  applied  for.  By  requiring  the  sure- 
ties to  justify,  his  right  to  make  a  motion  on  the  ground  of 
irregularity  will  be  gone.  See  cases  cited  in  last  chapter  on 
the  analogous  question  of  arrest.  Three  days  only  are  allowed 
him  for  the  former  purpose. 

By  requiring  the  sureties  to  justify,  the  defendant  will  like- 
wise lose  his  rights  to  give  counter  security.  See  sec.  210. 
These  points  should,  of  course,  be  weighed  well,  and  at  once, 
before  deciding  on  the  precise  course  to  be  adopted. 

Justification  by  Plaintiff's  ^Sureties.'] — The  proceedings,  where 
justification  is  demanded,  are  thus  prescribed  by  sec.  210: 

§  210.  The  defendant  may,  within  three  days  after  the  service  of  a 
copy  of  the  affidavit  and  undertaking,  give  notice  to  the  sheriff  that  he 
excepts  to  the  sufficiency  of  the  sureties.  If  he  fail  to  do  so,  he  shall 
be  deemed  to  have  waived  all  objection  to  them.  When  the  defend- 
ant excepts,  the  sureties  shall  justify,  on  notice,  in  like  manner  as  upon 
bail  on  arrest.  And  the  sheriff  shall  be  responsible  for  the  sufficiency 
of  the  sureties,  until  the  objection  to  them  is  either  waived  as  above 
provided,  or  until  they  shall  justify,  or  new  sureties  shall  be  substituted 
and  justify.  If  the  defendant  except  to  the  sureties,  he  cannot  reclaim 
the  property  as  provided  in  the  next  section. 

The  proceedings,  it  will  be  seen,  are  substantially  the  same 
as  those  treated  of  in  the  last  chapter.  If  the  plaintiff's  sureties 
omit  to  justify,  it  seems  the  defendant  will  be  without  remedy, 
except  as  against  the  sheriff.  See  Manley  v.  Patterson,  3  C.  E. 
89,  there  cited. 

The  case  of  Burns  v.  Bobbins,  1  C.  B.  62,  above  referred  to, 
is  authority,  as  to  the  power  of  the  court  to  allow  further  time 
for  sureties  to  justify,  upon  good  cause  shown ;  but,  it  seems, 


246  REPLEVIN. 

a  new  notice  must  be  given   by  them,  under  these  circum- 
stances. 

Counter  Security  by  Defendant.'] — If|  on  the  contrary,  the  de- 
fendant is  desirous  of  retaining  the  property  on  counter  security, 
it  is  competent  for  him  to  do  so  under  sec.  211,  which  runs  as 
follows : 

8  211.  At  any  time  before  the  delivery  of  the  property  to  the 
plaintiff,  the  defendant  may,  if  he  do  not  except  to  the  sureties  of  the 
plaintiff,  require  the  return  thereof,  upon  giving  to  the  sheriff  a  written 
undertaking,  executed  by  two  or  more  sufficient  sureties,  to  the  effect 
that  they  are  bound,  in  double  the  value  of  the  property  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if 
such  delivery  be  adjudged ;  and  for  the  payment  to  him  of  such  sum 
as  may,  for  any  cause,  be  recovered  against  the  defendant.  If  a  return 
of  the  property  be  not  so  required,  within  three  days  after  the  taking 
and  service  of  notice  to  the  defendant,  it  shall  be  delivered  to  the 
plaintiff,  except  as  provided  in  section  216. 

It  will  be  seen  that,  if  these  proceedings  are  not  taken  within 
the  three  days  allowed  as  above,  the  property  is  to  be  delivered 
by  the  sheriff  to  the  plaintiff,  except  in  the  event  of  a  claim  by 
a  third  party,  as  hereafter  noticed. 

Justification  by  Defendant's  Sureties.] — In  all  cases,  the  defend- 
ant's sureties  must  justify,  as  follows,  under  sec.  212: 

§  212.  The  defendant's  sureties,  upon  a  notice  to  the  plaintiff  of  not 
less  than  two,  nor  more  than  six  days,  shall  justify  before  a  judge  or 
justice  of  the  peace,  in  the  same  manner  as  upon  bail  on  arrest;  upon 
such  justification,  the  sheriff  shall  deliver  the  property  to  the  defendant. 
The  sheriff  shall  be  responsible  for  the  defendant's  sureties,  until  they 
justify,  or  until  justification  is  completed  or  expressly  waived  ;  and  may 
retain  the  property  until  that  time ;  but,  if  they,  or  others  in  their 
place,  fail  to  justify,  at  the  time  and  place  appointed,  he  shall  deliver 
the  property  to  the  plaintiff. 

General  Qualifications  of  Sureties.] — The  qualifications  of  the 
sureties  in  general,  and  their  justification,  arc  the  same  as  those 
on  arrest,  as  treated  of  in  the  preceding  chapter.  See  Code, 
sec.  213. 

Disposal  of  Property  :  Sheriff's  Fees  and  Acts.] — If  the  defend- 
ant's sureties  justify  in  due  course,  the  property,  as  above  pre- 


REPLEVIN.  247 

scribed,  must  be  delivered  to  the  defendant ;  if  they  fail  to  do 
so,  then  to  the  plaintiff.  In  the  meantime  it  is  to  remain  in  the 
custody  of  the  sheriff,  who  is  entitled  to  be  paid  his  fees  and 
necessary  expenses,  by  the  party  to  whom  it  is  eventually  deli- 
vered. Sec.  215.  For  the  fees  in  question,  see  2  R.  S.  644  to 
647.  The  expenses  must  of  course  be  reasonable,  and,  if  any 
question  arise,  a  taxation  of  his  account  may  be  applied  for,  in 
the  usual  manner.  The  doctrine  that  the  return  of  the  sheriff 
is,  as  a  general  rule,  conclusive  as  to  his  official  acts,  holds  good 
as  to  proceedings  in  replevin,  as  under  the  other  circumstances 
previously  noticed.     See  Russell  v.  Gray,  before  cited. 

Claim  by  Third  Person.'] — The  contingency  of  a  claim  to  the 
property  by  a  third  party,  and  the  indemnity  that  may  be  re- 
quired by  the  sheriff  thereon,  are  thus  provided  for  by  sec.  216 : 

§  216.  If  the  property  taken  be  claimed  by  any  other  person  than 
the  defendant  or  his  agent,  and  such  person  shall  make  affidavit  of  his 
title  thereto,  and  right  to  the  possession  thereof,  stating  the  grounds  of 
such  right  and  title,  and  serve  the  same  upon  the  sheriff ;  the  sheriff 
shall  not  be  bound  to  keep  the  property,  or  deliver  it  to  the  plaintiff, 
unless  the  plaintiff,  on  demand  of  him  or  his  agent,  shall  indemnify  the 
sheriff  against  such  claim,  by  an  undertaking,  executed  by  two  suffi- 
cient sureties,  accompanied  by  their  affidavits,  that  they  are  each  worth 
double  the  value  of  the  property,  as  specified  in  the  affidavit  of  the  plain- 
tiff, and  freeholders  and  householders  of  the  county.  And  no  claim 
to  such  property  by  any  other  person  than  the  defendant  or  his  agent 
shall  be  valid  against  the  sheriff,  unless  made  as  aforesaid ;  and,  not- 
withstanding such  claim,  when  so  made,  he  may  retain  the  property  a 
rea  sonable  time,  to  demand  such  indemnity. 

Ultimate  Disposal  of  Undertakings.] — By  section  423,  the  dis- 
posal of  the  different  undertakings  referred  to  in  this  chapter  is 
made  the  subject  of  a  special  and  exceptional  provision,  and  it 
is  directed  that,  after  the  justification  of  the  sureties,  they  shall 
be  delivered  by  the  sheriff,  to  the  parties  respectively  for  whose 
benefit  they  were  taken.  This  seems  to  abrogate  the  former 
doctrine,  that  the  indemnities  to  be  given  under  the  old  prac- 
tice, were  for  the  benefit  of  the  sheriff,  and  not  of  the  party. 
See  Russell  v.  Gray,  11  Barb.  541. 

Ultimate  Disposal  of  Papers.] — The  ultimate  disposal  of  the 
papers  is  prescribed  by  sec.  217,  as  follows: 


248  INJUNCTION. 

§  217.  The  sheriff  shall  file  the  notice  and  affidavit,  with  his  pro. 
ceedings  thereon,  with  the  clerk  of  the  court  in  which  the  action  is 
pending,  within  twenty  days  after  taking  the  property  mentioned 
therein. 

Ultimate  Disposal  of  Property.'] — The  property,  when  disposed 
of  in  any  of  the  above  methods,  remains  subject  to  the  disposi- 
tion of  the  court  on  the  hearing  of  the  cause  ;  and  a  delivery 
may  be  demanded,  or  the  liability  of  the  sureties  enforced  ac- 
cordingly, in  the  usual  manner,  on  an  order  or  decree  being 
duly  made. 

On  Discontinuance,  Property  to  be  restored.] — The  plaintiff  can- 
not discontinue  his  action,  without  providing  for  the  return  of 
the  property  to  the  defendant,  as  well  as  for  the  payment  of 
costs.  If  the  defendant  be  in  a  situation  to  ask  for  a  dismissal 
of  the  complaint,  he  should  set  the  cause  down,  and  take  judg- 
ment by  default,  in  the  ordinary  course.  He  cannot  obtain  a 
judgment  for  a  return,  on  the  usual  motion  for  dismissal.  Wil- 
son v.  Wheeler,  6  How.  49  ;  1  C.  R.  (N.  S.)  402. 


CHAPTER     III. 

INJUNCTION. 


§  88.  Preliminary  Remarks :    By  ivhom  granted. 

THE  remedy  of  injunction,  though  in  some  respects  altered 
in  form,  remains,  in  all  its  substantial  parts,  the  same  as  under 
the  former  practice. 

The  definition  of  that  remedy,  as  now  existent,  and  of  the 
officers  by  application  to  whom  it  is  obtainable,  is  thus  con- 
tained in  sec.  218: 

§  218.  Tlie  writ  of  injunction  as  a  provisional  remedy  is  abolished; 
and  an  injunction,  by  order,  is  substituted  therefor.  The  order  may  be 
made  by  tho  court  in   which   the  action  is  brought,  or  by  a  judge 


INJUNCTION.  249 

thereof,  or  by  a  county  judge,  in  the  cases  provided  in  the  next  sec- 
tion ;  and,  when  made  by  a  judge,  may  be  enforced  as  the  order  of  the 
court. 

In  Livingston  v.  Hudson  River  Railroad  Company,  3  C.  R.  143, 
the  following  is  stated  to  have  been  decided,  though  no  facts 
are  given — i.  e. :  "  It  is  improper  to  grant  an  injunction,  where 
the  question  involved  has  been  already  decided  at  a  special 
term,  a  distinct  suit  being  an  irregular  mode  of  obtaining  a  re- 
view of  that  decision." 

Such  motions,  in  practice,  are  always  made  to  the  single 
judge.  The  power  of  the  General  Term  to  entertain  them,  if 
thought  expedient,  is,  however,  asserted  in  Drake  v.  The  Hud- 
son River  Railroad  Company,  2  C.  R.  67. 

The  powers  of  the  county  judge  in  this  respect,  and  the  limits 
within  which  those  powers  are  exercisable,  have  been  before 
considered,  in  the  chapter  as  to  the  general  machinery  of  a  suit, 
under  the  head  of  Motions.  See,  in  particular,  Eddy  v.  How- 
let,  and  Peebles  v.  Rogers,  there  cited.  The  substitution  of  an 
order  for  the  former  writ  of  injunction  is  merely  formal,  and 
calculated  to  simplify,  instead  of  complicating  the  practice. 

§  89.   When  obtainable — General  Classification. 

The  circumstances  under  which  an  injunction  is  obtainable, 
are  thus  laid  down  in  sec.  219 : 

§  219.  Where  it  shall  appear  by  the  complaint,  that  the  plaintiff  is 
entitled  to  the  relief  demanded ;  and  such  relief,  or  any  part  thereof, 
consists  in  restraining  the  commission  or  continuance  of  some  act,  the 
commission  or  continuance  of  which,  during  the  litigation,  would  pro- 
duce injury  to  the  plaintiff ;  or  when,  during  the  litigation,  it  shall 
appear  that  the  defendant  is  doing,  or  threatens,  or  is  about  to  do,  or  pro- 
curing or  suffering  some  act  to  be  done,  in  violation  of  the  plaintiff's 
rights  respecting  the  subject  of  the  action,  and  tending  to  render  the 
judgment  ineffectual ;  a  temporary  injunction  may  be  granted,  to  re- 
strain such  act.  And  where,  during  the  pendency  of  an  action,  it  shall 
appear  by  affidavit,  that  the  defendant  threatens,  or  is  about  to  remove, 
or  dispose  of  his  property,  with  intent  to  defraud  his  creditors,  a  tempo- 
rary injunction  may  be  granted  to  restrain  such  removal  or  disposition. 

The  injunctions  obtainable  under  this  section,  may  be  classed 
under  the  two  main  divisions  of  preliminary  or  subsidiary ;  the 


250  INJUNCTION. 

former  arising  upon  the  case  as  stated  upon  the  complaint,  and 
forming  part  of  the  relief  originally  demanded ;  the  latter  ob- 
tainable in  respect  of  subsequent  acts  of  the  defendant.  A  third 
description,  which  may  be  denominated  as  extraneous,  arises 
under  the  last  section,  in  respect  of  circumstances  unconnected 
with  the  immediate  controversy  between  the  parties,  but  tend- 
ing incidentally  to  defeat  the  plaintiff's  rights.  This  branch  of 
the  subject  is  closely  connected  with  that  of  proceedings  supple- 
mentary to  execution,  as  hereafter  to  be  considered :  and  the 
powers  here  conferred,  when  exercised,  give  to  those  provisions 
a  species  of  retrospective  effect,  by  restraining,  pendente  lite,  any 
disposition  of  the  defendant's  property,  which  might  tend  to  de- 
feat the  remedy  sought  for  by  the  suit,  when  ultimately  obtained. 


§  90.  Preliminary  Injunctions. 

When  granted.'] — Proceeding  with  the  consideration  of  these 
remedies,  in  the  order  above  prescribed,  the  first  which  presents 
itself  is  the  preliminary  injunction,  applied  for  at  the  outset  of 
the  suit,  and  forming  part  of  the  relief  originally  demanded.  It 
will  be  seen,  that  one  main  condition  precedent  to  an  application 
of  this  nature  is,  that  the  plaintiff's  title  ti  relief,  and,  in  parti- 
cular, to  the  injunction  applied  for,  should  appear  by  the  com- 
plaint ;  unless  this  be  the  case,  it  cannot  be  granted. 

Thus,  it  has  been  held  that  an  injunction  is  only  obtainable 
by  a  plaintiff.  A  defendant,  as  defendant,  is  not  competent  to 
move  for  one,  except  in  the  very  improbable  case  of  his  title  to 
do  so  appearing  by  the  complaint.  His  only  method  of  pro- 
ceeding is  to  serve  a  summons  and  complaint  in  the  nature  of  a 
cross-suit,  and  then  proceed  therein  as  plaintiff.  Thursby  v.  Mills, 
1  C.  R.  83. 

In  Oure  v.  <'rawford,b  How.  293,  1  C.  E.  (N.  S.)  18,  the  pow- 
ers of  the  court  under  the  code,  in  relation  to  the  granting  of 
injunctions,  are  asserted  in  the  strongest  and  widest  terms.  They 
now  extend,  it  was  held,  to  the  restraining  any  act  which  may 
produce  injury  to  the  plaintiff.  The  provisions  of  the  Revised 
Statutes,  particularly  those  in  Vol.  2,  516,  sec.  47,  in  conflict 
with  these  powers,  arc  repealed  by  sec.  468.  "The  inquiry,  and 
the  only  one,  it  appears  bo  me,"  says  the  learned  Judge,  (Ed- 
monds,) "which,  under  the  Code,  can  be  made,  is  whether  the 


INJUNCTION.  251 

act  which  is  sought  to  be  restrained  is  lawful  or  not."  The 
question  on  that  particular  case,  was,  as  to  the  provisions  of  the 
Kevised  Statutes  above  referred  to,  which  enact  that  proceed- 
ings to  remove  a  tenant,  shall  not  be  stayed  or  suspended,  by 
any  writ  or  order  of  any  court  or  officer.  The  conclusion,  so 
come  to,  was  contrary  to  the  expressed  opinion  of  the  learned 
judge  himself,  in  Smith  v.  Moffat,  1  Barb.  65 ;  his  confidence  in 
which,  he  said,  remained  unshaken,  though  he  held  that  the 
law,  as  there  laid  down,  was  repealed  by  the  Co'de. 

In  Wbrdsivorth  v.  Lyon,  however,  5  How.  463,  1  C.  E.  (N.  S.) 
163,  the  decision  in  Cure  v.  Crawford  was  disapproved,  and  it  was 
held  that  an  injunction  cannot  be  granted  under  such  circum- 
stances. The  act  of  3d  April,  18-19,  gives  an  appeal,  and  provides 
for  a  stay  of  proceedings  thereon,  on  cases  of  this  nature,  and 
the  remedy  of  the  plaintiff  lies  under  that  act,  and  not  by  in- 
junction. The  doctrines  as  to  repeal  of  the  provisions  of  the 
Revised  Statutes,  as  laid  down  in  the  same  case,  were  also  con- 
troverted, and  Smith  v.  Moffat  maintained  to  be  still  good  law,  as 
well  under  the  Code  as  under  the  former  practice.  These  views 
are  also  enounced  by  Roosevelt,  J.,  in  Hyatt  v.  Burr,  8  How.  168. 

In  Capet  v.  Parker,  3  Sandf.  662, 1  C.  E.  (N.S.)  90,  the  doctrine 
in  Cure  v.  Crawford  is  supported,  though  in  modified  terms.  It 
was  held  that,  where  the  objection  lies  to  the  jurisdiction  of  the 
j  ustice  to  proceed  in  the  matter,  or  where  fraud  is  shown,  (see 
Jones  v.  Stuyvesant,  note,  3  Sandf.  665,)  an  injunction  may  be 
granted ;  the  same  view  being  held  as  in  Cure  v.  Crawford,  as 
to  the  virtual  repeal  of  the  section  immediately  in  question. 

In  Forrester  v.  Wilson,  1  Duer,  624,  11  L.  O.  124,  it  was  also 
held,  that  the  court  possessed  the  power  of  relieving  a  tenant, 
on  equitable  terms,  where  the  warrant  had  been  obtained  by 
surprise.  The  payment  of  the  rent  due  was  there  made  a  con- 
dition precedent,  and  the  general  ground  taken  was,  that,  as 
the  magistrate,  by  the  issuing  of  the  warrant,  was  functus  officio, 
the  plaintiff,  unless  by  the  interposition  of  a  Court  of  Equity, 
would  be  remediless. 

The  two  last  decisions  rest  upon  very  strong  grounds,  and,  if  a 
proper  distinction  be  drawn,  they  seem  reconcilable  with  those 
previously  cited.  The  general  ground  taken  in  Cure  v.  Craw- 
ford appears  too  broad.  That  the  higher  courts  are  still  prohi- 
bited from  interfering  in  this  class  of  cases,  under  ordinary  cir- 
cumstances, and  within  the  limits  of  the  ordinary  jurisdiction  of 


252  INJUNCTION. 

the  j  ustice,  seems  to  be  the  preferable  view,  so  long  as  that 
jurisdiction  is  duly  exercised.  But,  where  the  jurisdiction  itself 
is  questioned,  or  where  fraud  or  surprise  is  shown,  the  general 
language  of  the  Code,  embracing  all  acts,  without  distinction,  the 
commission  of  which  would  produce  injury,  may  be  fairly  held 
to  repeal  pro  tanto  the  positive  prohibition  before  noticed. 

In  Corning  v.  The  Troy  Iron  and  Nail  Factory,  6  How.  89,  1 
C.  E.  (N.  S.)  405,  the  unlimited  doctrine  in  relation  to  the  pow- 
ers of  the  court,  as  laid  down  in  Cure  v.  Crawford,  is  disapproved, 
and  it  was  held  that  the  law  in  relation  to  injunction  is  not  mate- 
rially changed.  It  is  not  enough  for  a  plaintiff,  on  a  motion  for 
a  temporary  injunction,  to  show  that  the  continuance  of  the 
acts  complained  of,  will  do  him  an  injury ;  he  must  also  show, 
that  he  will  be  entitled  to  final  relief  by  injunction.  The  ques- 
tion there  arose  as  to  the  obstruction  of  a  watercourse,  which 
was  held  to  be  a  case  to  which  the  remedy  of  injunction  was 
applicable,  and  it  was  accordingly  granted,  on  modified  terms. 
Similar  relief  was  granted  in  respect  of  such  an  obstruction  in 
Clark  v.  Mayor  of  Syracuse,  13  Barb.  32.  See  as  to  the  right 
to  maintain  obstructions  in  a  private  watercourse,  as  protected 
in  Curtis  v.  Keeler,  14  Barb.  511. 

An  injunction  will  not  be  granted,  unless  it  be  shown  that 
the  plaintiff  has  some  interest  in  the  premises;  and  that  the 
defendant  is  wrongfully  in  possession,  and  is  committing  actual 
injury.     Smith  v.  Reno,  G  How.  124  ;  ICE.  (N.  S.)  405. 

So,  where  the  party  has  a  sufficient  remedy  in  an  action  for 
trespass,  and  it  does  not  appear  that  the  injury  is  irreparable, 
an  injunction  ought  not  to  be  granted.  Livingston  v.  The  Hud- 
son River  Railroad  Company,  3  C.  E.  143. 

It  will  not  be  granted  to  restrain  acts,  in  respect  of  which  no 
final  judgment  is  prayed.  A  temporary  injunction,  to  restrain 
a  defendant  from  committing  trespasses  in  premises  adjoining 
those  which  were  the  actual  subject  of  the  suit,  was  accordingly 
refused,  on  those  grounds,  in  llulce  v.  Thompson,  8  How.  475. 
the  same  principle,  as  laid  down  in  Corning  v.  The  Troy  Iron 
and.  X<iif  Factory,  above  cited.  That  doctrine,  i.  c,  that  a  tempo- 
rary Injunction  cannot  be  maintained;  unless  the  plaintiff  makes 
out  a  case,  showing  that  ho  is  entitled  to  final  relief  by  injunc- 
i.i' mi,  is  further  maintained  in  Ward  v.  Dewey,  7  How.  17.  See 
also  Wordsworth  v.  Lyon,  5  How.  403. 

AY  here  the  plaintiff's  title  to  relief  cannot  be  maintained,  as  in 


INJUNCTION.  253 

the  case  of  an  action,  brought  by  a  creditor  at  large,  to  set  aside 
a  general  assignment,  an  injunction  cannot  be  retained.  The 
powers  of  the  courts  to  grant  injunctions  are  enlarged  by  the 
Code,  but  that  enlargement  does  not  enlarge  the  rights  of  a 
plaintiff  to  bring  his  action.    Neustadt  v.  Joel,  12  L.  0.  148. 

In  respect  to  the  granting  of  a  perpetual  injunction,  see  Au- 
burn and  Cato  Plank-road  Co.  v.  Douglass,  12  Barb.  553,  affirmed 
by  the  Court  of  Appeals,  12th  April,  1854.  See  likewise  The 
Attorney- General  v.  The  Mayor  of  New  York,  12  L.  O.  17  ;  Mil- 
hau  v.  Sharp,  15  Barb.  193 ;  same  case,  9  How.  102 ;  Stuyve- 
sant  v.  Pearsall,  15  Barb.  244 ;  Ingalls  v.  Morgan,  Court  of  Ap- 
peals, 12th  April,  1854,  affirming  Ingalls  v.  Morgan,  12  Bar- 
bour, 578. 

So  it  has  been  also  held  that  an  injunction  cannot  be  granted 
under  the  first  branch  of  sec.  219,  as  above  cited,  unless  the 
complaint  contain  a  demand  for  such  injunction,  as  part  of  the 
relief  sought ;  nor,  it  would  seem,  does  the  second  branch  of  it 
aid  the  plaintiff  in  case  of  such  an  omission,  inasmuch  as  that 
provision  applies  only  to  the  case  of  a  necessity  arising  during 
litigation,  and  not  existing  before  it.  Hovey  v.  McCrea,  4 
How.  31. 

Nor  can  an  injunction  be  granted,  inconsistent  with  the  relief 
prayed  for  in  the  complaint.  Thus,  where  a  complaint  was 
founded  on  a  trespass  in  cutting  wood,  and  damages  were  claim- 
ed, an  injunction  to  restrain  the  defendant  from  continuing  the 
acts  complained  of,  was  dissolved  on  that  ground;  and,  also, 
because  the  continuance  of  the  trespass  could  not  tend  to 
render  the  judgment  ineffectual,  as  proportionate  damages 
would  be  recovered.  Townshend  v.  Tanner,  3  How.  384 ;  2  C. 
R.  6 ;  see  likewise  Austin  v.  Chapman,  below  cited.  The 
doctrine  of  waste  of  this  description,  is  fully  examined  into  in 
Kidd  v.  Dennison,  6  Barb.  9 ;  Van  Wyck  v.  Alliger,  6  Barb. 
507 ;  Johnson  v.  White,  11  Barb.  194,  and  Rodgers  v.  Rodgers, 
11  Barb.  595. 

It  will  not  be  granted,  where  the  plaintiff's  title  to  relief  is 
disputed,  and  does  not  clearly  appear,  or  where  actual  injury  or 
damage  is  not  clearly  shown.  Goulding  v.  Bain,  4  Sandf.  716. 
See  Austin  v.  Chapman,  11  L.  0.  103 ;  Bennett  v.  American 
Art  Union,  5  Sandf.  614,  10  L.  O.  132.  See  likewise  Harrison 
v.  Newton,  9  L.  O.  311,  1  C.  R.  (N.  S.)  207  ;  same  case,  9  L.  0. 
347. 


254  INJUNCTION. 

Where,  however,  an  injunction  forms  part  of  the  relief  asked 
for,  it  will  be  granted  to  stay  waste  or  trespass,  if  attended 
with  irreparable  mischief,  or  if  the  defendant  be  irresponsible  ; 
even  where  the  plaintiff's  right  is  in  dispute,  and  his  title  doubt- 
ful ;  Spear  v.  Gutter,  4  How.  175 ;  5  Barb.  486 :  the  defendant 
in  that  case  being  even  in  actual  possession  of  the  property, 
under  a  decision  by  a  County  Judge,  which  decision  had  been 
carried  to  the  Supreme  Court  for  reversal,  and  was  still  unde- 
termined. 

An  inj unction,  pendente  lite,  was  also  granted  to  restrain  the 
sale  of  goods,  charged  to  have  been  obtained  by  fraud,  and  the 
title  to  which  was  disputed,  in  Malcolm  v.  Miller,  6  How.  456. 

In  Olmstead  v.  Loomis,  6  Barb.  152,  it  was  held  that,  to 
authorize  an  injunction,  there  must  not  only  be  a  clear  viola- 
tion of  the  plaintiff's  rights,  but  the  rights  themselves  should 
be  certain,  and  capable  of  being  clearly  ascertained.  See,  also, 
Harrison  v.  Neivton,  9  L.  0.  347,  below  cited. 

Nor  will  an  injunction  be  granted  to  restrain  the  prosecution 
of  works  by  a  railroad  company,  in  a  mode  by  which  injury  is 
anticipated  as  possible,  but  not  shown  to  be  certain  to  accrue. 
Commissioners  of  Highways  Y.Albany  Northern  Railroad  Company, 

8  How.  70.  See  likewise  Harrison  v.  Newton,  9  L.  O.  311,  1  C. 
E.  (N.  S,)  207  ;  and  Tillotson  v.  The  Hudson  River  Railroad  Com- 
pany, Court  of  Appeals,  18th  April,  1854,  affirming  same  case, 
15  Barb.  406. 

In  cases  of  this  nature,  however,  the  Court  will  interfere  and 
restrain  the  progress  of  the  works,  where  the  injury  sought 
to  be  restrained  is  definite,  and  incurred  at  once  and  before 
their  completion.  Wheeler  v.  Rochester  and  Syracuse  Railroad 
Company,  12  Barb.  227. 

In  Linden  v.  Hepburn,  3  Sandf.  668,  3  C.  E.  165 ;  5  How.  188; 

9  L.  0.  80,  it  was  decided  that,  under  a  complaint  which  prayed 
for  judgment  of  forfeiture  of  a  term,  and  also  for  an  injunction, 
to  restrain  the  defendants  from  making  alterations  in  the  mean- 
bime;  both  forma  of  relief  could  not  be  granted  in  the  same 
proceeding.  An  injunction  which  had  there  been  granted,  was 
accordingly  ordered  to  be  reversed,  unless  the  plaintiffs  stipu- 
lated not  to  take  judgment  for  a  forfeiture,  amending  their 
complai  to  ask  for  damages;  in  that  case,  it  was  to 
stand,  as  the  '■■'  ■'  made  by  the  complaint  would  have  entitled 
them  to  an  injunction,  had  they  asked  alone  for  that  remedy. 


INJUNCTION.  255 

An  injunction  cannot  now  be  obtained  in  one  suit,  to  stay  the 
prosecution  of  another  in  the  same  court.  The  proper  course 
is  to  make  an  application  to  stay  proceedings,  in  the  suit  which 
is  sought  to  be  stopped,  upon  the  usual  notice  to  the  plaintiff  in 
that  suit.  Dederich  v.  Hoysradt,  4  How.  350 ;  Hunt  v.  Farmers' 
Loan  and  Trust  Company,  8  How.  416.  The  application  to 
stay  cannot  be  made  in  the  first  of  such  suits ;  it  can  only  be 
entertained  in  the  second,  on  motion  made  in  the  proper  dis- 
trict. Farmers'  Loan  and  Trust  Company  v.  Hunt,  1  C.  R. 
(N.  S.)  1. 

Nor  can  an  injunction  be  granted  by  one  court,  to  stay  pro- 
ceedings in  a  suit  pending  in  another  court  of  the  State,  having 
equal  power  to  grant  the  relief  sought  by  the  complaint.  Grant 
v.  Quick,  5  Sandf.  612. 

In  Burkhardt  v.  Sanford,  however,  7  How.  329,  an  injunction, 
obtained  by  a  purchaser  of  the  estate  of  a  non-resident  debtor, 
claiming  to  redeem  under  a  sale  on  execution,  in  an  action 
commenced  by  attachment  after  the  date  of  his  purchase,  and 
seeking  to  restrain  payment  by  the  sheriff  to  the  execution  cre- 
ditor, was  held  to  be  maintainable  in  principle ;  though  vacated 
on  another  ground,  it  not  being  shown  that  the  safety  of  the 
fund  would  be  endangered  by  the  payment  in  question. 

An  injunction  will  not  be  granted  on  a  complaint,  the  alle- 
gations in  which  are  all  verified  on  information  and  belief.  If 
nothing  is  sworn  to,  of  the  party's  own  knowledge,  that  would 
entitle  him  to  an  injunction,  the  application  will  be  denied.  Jones 
v.  Atterbury,  1  C.  R.  (1ST.  S.)  87.  See,  also,  Pomroy  v.  Hind- 
marsh,  below  cited.  See  likewise  Burkhardt  v.  Sanford,  supra; 
Roome  v.  Webb,  3  How.  327,  1  C.  R.  114,  and  various  cases  to 
the  same  effect,  under  the  heads  of  Arrest  and  Attachment. 

The  following  cases  have  reference  to  the  subject  of  injunc- 
tions in  general,  without  regard  to  the  peculiar  form  of  applica- 
tion: 

In  Dillon  v.  Horn,  5  How.  35,  an  injunction  and  receiver  were 
granted,  at  the  suit  of  a  general  creditor  of  insolvent  general 
partners,  the  debt  not  being  denied. 

In  Hascall  v.  The  Madison  University,  8  Barb.  174,  1  C.  R. 
(N.  S.)  170,  it  was  held  that  the  founders  of  an  institution,  on 
condition  of  its  being  located  in  a  specified  place,  might  obtain 
an  injunction  against  its  unauthorized  removal  to  another. 

In  Howai-d  v.  Henriques,  3  Sandf.  725,  an  injunction  was 


256  INJUNCTION. 

granted  to  restrain  the  defendants  from  making  use  of  the  name 
of  the  plaintiff's  hotel.      See,  also,  Stone  v.  Carlan,  3  C.  R.  67. 

In  Gillott  v.  Kettle,  12  L.  O.  120  ,the  infringement  of  the  plain- 
tiff's trade-mark  was  restrained. 

In  McCrackan  v.  Ware,  3  Sandf.  688, 1  C.  R.  (N.  S.)  215,  where 
cross  suits  had  been  instituted,  respecting  partnership  property, 
to  which  both  parties  claimed  an  equal  right,  and  an  injunction 
and  receiver  had  been  granted  in  one  suit,  it  was  held  to  be  as 
of  course  to  grant  the  same  remedy  in  the  other,  without  spe- 
cial cause  being  shown. 

An  injunction  will  not,  however,  be  granted  to  restrain  the 
due  use  of  partnership  property,  where  security  has  been  given, 
and  no  abuse  of  such  property  is  to  be  apprehended.  Dunham 
v.  Jarvis,  8  Barb.  88.  See,  as  to  the  latter  point,  Austin  v. 
Chapman,  11  L.  0.  103.  Where  the  partnership  articles 
do  not  provide  for  that  contingency,  a  solvent  partner  is  not 
entitled,  as  of  right,  to  the  sole  administration  of  the  funds  of  a 
firm,  dissolved  by  the  separate  insolvency  of  others  of  its  mem- 
bers, and  he  may  be  restrained  by  injunction,  under  these  cir. 
cumstances,  though  a  preference  will  be  given  to  him  on 
appointing  a  receiver  of  those  funds.  Hubbard  v.  Guild,  1  Duer, 
662.  Where,  however,  on  the  dissolution  of  a  partnership, 
there  has  been  a  special  agreement  that  one  partner  shall  assume 
the  winding  up  of  the  concern,  his  management  will  not  be  in- 
terfered with,  in  the  absence  of  fraud.  Weber  v.  Defor,  8  How. 
502.  Nor  will  an  injunction  be  granted  to  restrain  the  proceed- 
ings of  a  receiver,  appointed  under  supplementary  proceedings, 
to  enforce  payment  of  a  judgment  against  copartnership  pro- 
perty. The  proper  course  is  to  apply  in  the  suit  in  which  he 
has  been  appointed,  and  not  to  institute  fresh  proceedings.  Van- 
Rensselaer  v.  Emery,  9  How.  135. 

Where  a  partnership  had  been  actually  dissolved  and  a  new 
arrangement  contemplated,  but  not  proved  to  have  been  actual- 
ly effected,  an  injunction  in  respect  of  the  further  use  of  the 
partnership  property  was  maintained.  Smith  v.  Danvers,b  Sand- 
fcrd,  669. 

Where  the  defendant  was  under  obligation  to  divide  the  pro- 
duce of  a  farm  with  the  plaintiff  annually,  it  was  held  that  an 
injunction,  to  re  train  the  fi  Miner  from  dealing  with  the  property, 
until  a  division  was  made,  was  improperly  granted,  there  being 
QO  allegation  of  irresponsibility,  but  a  mere  fear  expressed  that 


INJUNCTION".  257 

an  accurate  account  would  not  be  kept.     Newbury  v.  Newbury, 
6  How.  182;  10L.O.  52;  1  C.  E.  (N.  S.)  409. 

An  injunction  cannot  be  obtained,  by  a  single  member  of  a 
class  of  persons  having  a  common  interest  in  the  same  subject- 
matter,  in  respect  of  an  injury  to  such  persons,  as  a  class,  in  an 
action  brought  by  such  party,  in  his  own  name,  and  for  his  indi- 
vidual benefit.     Smith  v.  Lockwood,  10  L.  O.  12. 

In  the  same  case,  reported  13  Barb.  209, 10  L.  0.  232,  it  was 
held  that  the  court  will  not  interfere  by  injunction,  to  put  down 
a  public  nuisance,  which  does  not  violate  private  rights  of  pro- 
perty, but  only  contravenes  general  policy.  Nor  will  an  injunc- 
tion be  granted  to  prevent  the  perpetration  of  an  act  prohibited 
by  statute,  because  it  might  diminish  the  profits  of  a  trade  or 
business,  carried  on  by  the  applicant  in  common  with  others. 

In  Harrison  v.  Newton,  9  L.  O.  347,  similar  principles  are  laid 
down  ;  and  it  was  held  that  a  party  cannot  obtain  an  injunction 
on  grounds  of  the  injury  to  the  public,  nor  on  a  purpresture, 
unless  the  interest  of  the  people  imperatively  require  it.  A 
private  injury  must  be  shown.  It  was  also  held  that,  to  war- 
rant an  injunction,  the  plaintiffs  interest  must  be  clear:  where 
his  right  is  in  any  way  doubtful,  the  court  will  not  enjoin, 
unless  the  injury  be  clearly  irreparable;  nor  will  an  injunction 
be  granted,  where  the  plaintiff  has  acquiesced,  at  any  period,  in 
the  inj  ury  complained  of. 

The  same  principle,  that  no  one  can  call  for  the  redress  of  an 
injury  to  others,  unless  his  own  rights  are  invaded,  is  maintained 
in  Badeau  v.  Mead,  14  Barb.  328.  In  Parsons  v.  The  Mayor  of 
New  York,  1  Duer,  439,  the  court  refused  to  restrain  the  erec- 
tion and  continuance  of  a  lamp-post,  alleged  to  be  a  general 
nuisance;  on  the  ground  that  no  special  injury  was  shown,  and 
that  the  matter  rested  in  the  discretion  of  the  authorities,  which 
would  not  be  interfered  with,  unless  that  was  proved. 

Where,  however,  the  remedy  sought  is  to  enforce  the  rights 
of  the  public,  against  a  body  generally  responsible  for  the  due 
performance  of  public  duties,  an  injunction  may  be  obtained,  to 
stay  an  illegal  act,  by  any  parties  individually  interested  in  that 
due  performance.  A  corporation  may  be  held  amenable  for 
such  an  act,  at  the  suit  of  any  corporator.  Christopher  v.  The 
Mayor  of  New  York,  13  Barb.  567;  Milhau  v.  Sharp,  15  Barb. 
193  ;  same  case,  9  How.  102  ;  Stuyvesant  v.  Pearsall,  15  Barb. 
244;  The  Attorney- General  v.  The  Mayor  of  New  York,  12  L.  O. 
17 


258  INJUNCTION. 

17;  Davis  v.  The  City  of  New  York,  1  Duer,  451 ;  The  People  v. 
Compton,  1  Duer,  512,  affirmed  by  the  Court  of  Appeals,  in  The 
People  v.  Sturtevant,  31st  December,  1853. 

But,  where  a  corporation  has  not  transcended  the  legal  limits 
of  its  duty,  and  the  question  merely  arises  as  to  the  due  or 
undue  performance  of  that  duty,  injunction  will  not  be  the  pro- 
per remedy.  Betts  v.  The  City  of  Williamsburgh,  15  Barb.  255  • 
Bouton  v.  The  City  of  Brooklyn,  15  Barb.  375 ;  Thatcher  v.  Du- 
senbury,  9  How.  32. 

An  injunction  to  restrain  trustees  under  an  assignment,  when 
acting  within  the  limits  of  their  trust,  was  denied  on  similar 
grounds  in  Prior  v.  Tapper,  and  Taylor  v.  Stephens,  7  How.  415. 
Where,  however,  ihere  is  evidence  of  fraud,  on  facts  admit- 
ted, though  the  fraud  itself  was  denied,  an  injunction  to  restrain 
the  proceedings  of  trustees  was  maintained.  Churchill  v.  Ben- 
nett, 8  How.  309. 

In  The  People  v.  The  Metropolitan  Bank,  7  How.  144,  an  inte- 
rim injunction,  to  restrain  the  defendants  from  the  transaction 
of  their  banking  business,  in  a  suit  to  test  the  validity  of  their 
receiving  deposits  in  uncurrent  money,  was  vacated,  and  a  fur- 
ther injunction  denied. 

In  the  case  of  Harrison  v.  Newton,  above  noticed,  and  further 
reported  9  L.  0.  311,  1  C.  K.  (N.  S.)  207,  it  was  held  that, 
where  a  building  in  process  of  erection  can  be  completed,  with- 
out additional  injury  to  the  plaintiff,  a  temporary  injunction 
will  not  be  maintained,  nor  will  an  injunction  be  granted, 
where  the  rights  of  the  parties  are  a  matter  of  doubt. 

In  Bennett  v.  The  American  Art  Union  Company,  5  Sandf. 
C14,  10  L.  O.  132,  the  following  propositions  are  laid  down 
with  reference  to  the  granting  of  injunctions;  that  objections 
to  the  right  of  a  plaintiff  to  maintain  a  suit,  cannot  be  so  waived 
by  the  consent  of  the  parties,  as  to  deprive  the  court  of  the 
power,  or  release  it  from  the  duty  of  considering  them ;  that  a 
plaintiff  is  never  entitled  to  an  injunction,  unless  it  is  apparent 
that  he  baa  some  interest,  which  may  be  injuriously  affected  by 
the  act  which  he  seeks  to  restrain  ;  and  that,  where  the  plaintiff's 
claim  arises  from  an  illegal  contract,  to  which  he  was  a  volun- 
tary party,  the  maxim,  "  in  p)<-iri  delicto,  potior  est  conditio  defen- 
denlis"  will  apply,  and  his  complaint  must  be  dismissed. 

The  conclusion  that  the  common  law  doctrine  in  England,  as 
to  the  stopping  of  ancient  lights,  is  abrogated  in  this  country, 


INJUNCTION.  259 

and  that  an  injunction  cannot  be  maintained  on  that  ground,  is 
laid  down'  positively  in  Myers  v.  Gernmel,  10  Barb.  537. 

A  grossly  oppressive  agreement  was  set  aside,  and  the  defend- 
ant restrained  from  enforcing  securities  he  had  obtained  through 
its  means,  in  Smedes  v.  Wild.  7  How.  309. 

§  91.   Subsidiary  Injunction. 

In  relation  to  the  subsidiary  injunction  in  respect  of  matters 
in  violation  of  the  plaintiff's  rights,  but  first  arising  during  the 
continuance  of  the  litigation,  it  seems,  from  Hovey  v.  McCrea, 
4  How.  31,  that  not  only  must  the  act  complained  of  necessarily 
be  shown  to  have  the  tendency  to  render  the  judgment  ineffect- 
ual, but  that,  in  strictness,  the  necessity  for  such  application 
must  arise  during  the  litigation.  If  existent  at  the  commence- 
ment of  the  suit,  it  can  only  be  properly  applied  for  as  part 
of  the  relief  sought  by 'the  bill,  on  a  prayer  to  that  effect,  in  the 
usual  form.  See  this  same  distinction  drawn  in  Malcolm  v. 
Miller,  7  How.  456. 

In  Perkins  v.  Warren,  6  How.  341,  it  was  laid  down,  at  gene- 
ral term,  that  an  injunction  of  this  last  nature  cannot  be 
granted,  when  the  act  sought  to  be  restrained  has,  in  fact,  been 
already  done.  It  was  likewise  held  that,  where  the  statements 
on  which  such  injunction  is  sought,  are  denied  on  oath  by  the 
defendant,  and  unsupported  by  other  evidence,  it  could  not  be 
maintained.  "It  was  like  the  well-settled  equity  practice,  by 
which  an  injunction  is  dissolved,  if  the  whole  equity  of  the 
complaint  is  denied  by  the  answer." 

In  Olssen  v.  Smith,  7  How.  481,  it  was  held  that,  to  obtain  an^ 
injunction  under  the  third  clause  of  sec.  219,  the  affidavit  must 
show  a  threat  to  remove  the  property  during  the  pendency  of 
the  action  ;  and,  it  appearing  that  the  threats  there  in  question 
were  made  before  its  commencement,  an  injunction  could  not 
be  granted,  the  complaint  containing  no  prayer  for  such  relief, 
or  statement  to  that  end. 

The  statements  as  to  the  acts  so  done,  and  in  respect  of  which 
a  subsidiary  injunction  is  sought,  must  be  positive,  and  "facts 
and  circumstances  should  be  shown,  so  that  the  court  can  see 
that  a  fraud  has  been  threatened,  or  is  about  to  be  perpetrated. 
This  must  be  made  to  appear  to  the  court,,  hy  the  proper  proof, . 
and  not  by  mere  suspicion  or  belief.  Injunctions  are  not  issued i 


260  INJUNCTION. 

upon  mere  information  and  belief."  Pomroy  v.  Hindmarsh,  5 
How.  347.  See  likewise,  Boome  v.  Webb,  Jones  v.  Atterbury, 
and  Burhhardt  v.  Sanford,  above  cited,  and  cases  to  the  same 
effect,  under  the  heads  of  Arrest  and  Attachment. 

In  Brewster  v.  Hodges,  1  Duer,  609,  it  was  considered  that  the 
effect  of  an  injunction  of  this  nature,  was  not  to  restrain  any 
removal  or  disposition  whatever  of  the  defendant's  property, 
but  only  such  a  removal  or  disposition,  with  an  intent  to  defraud 
creditors. 

Extraneous  Injunction.]  —  No  case  appears  on  the  books, 
directly  bearing  on  the  granting  of  an  extraneous  injunction, 
pendente  lite. 

Effect  of  Injunction  as  regards  Interest.'] — The  granting  an  in- 
junction to  restrain  the  payment  of  money  to  a  third  party,  does 
not  release  the  defendant  from  his  liability  to  interest  on  that 
money,  whilst  so  restrained;  McKnight  v.  Chauncey,  Court  of 
Appeals,  12th  April,  1853 :  he  might,  it  was  there  held,  have 
paid  it  to  the  plaintiff  who  was  entitled  to  it,  or  into  court,  and, 
not  having  done  so,  was  properly  charged  with  interest. 


§  92.  Mode  of  Application  for,  Affidavits. 

The  questions  of  general  application,  in  relation  to  the  grant- 
ing or  refusing  of  an  injunction,  having  thus  been  considered, 
the  mode  of  application  for  that  purpose  remains  to  be  treated. 

That  application  may  be  made  as  follows,  under  sec.  220 : 

§  220.  The  injunction  may  be  granted  at  the  time  of  commencing 
the  action,  or  at  anytime  afterwards,  before  judgment ;  upon  its  appear- 
ing satisfactorily  to  the  court  or  judge,  by  the  affidavit  of  the  plaintiff, 
or  of  any  other  person,  that  sufficient  grounds  exist  therefor.  A  copy 
of  the  affidavit  must  be  served  with  the  injunction. 

The  question  as  to  whether  a  verified  pleading  may  or  may 
not  be  made  use  of  for  the  purpose  of  obtaining  or  dissolving 
an  injunction,  has  been  made  the  subject  of  considerable  discus- 
sion ;  and,  a  bh  •  cases  In  relation  to  such  use,  have  a  general 
bearing  on  applications  for  both  purposes,  they  will  be  here  con- 
red  in  connection.  The  point,  as  to  bow  far  statements  may 
or  may   not  be  inserted  in  a  complaint,  for   the  purpose  of 


INJUNCTION.  261 

grounding  an  application  for  an  injunction,  will  hereafter  be 
fully  considered,  under  the  head  of  Pleading,  to  which  there- 
fore the  reader  is  referred. 

A  pleading,  merely  verified  on  belief  only,  under  the  form 
prescribed  by  the  Code  of  1848,  was  not  sufficient  of  itself  for 
the  purpose  of  either  application ;  Benson  v.  Fash,  1  C.  R.  50 ; 
Roomev.  Webb,  3  How.  327;  1  C.  R.  114;  the  application  must 
be  made  on  a  positive  affidavit.  In  the  latter  of  those  cases,  it 
was  held  that,  if  an  affidavit  were  annexed  to  the  complaint, 
in  the  form  of  the  jurat  by  which  a  bill  in  chancery  was  for- 
merly verified,  it  would  be  sufficient,  and  would  make  the  com- 
plaint part-  of  the  affidavit,  for  the  purpose  of  applying  for  an 
injunction. 

In  Krom  v.  Hog  an,  4  How.  225,  it  was  held  that  an  answer, 
verified  in  the  form  prescribed  by  the  present  Code,  was  suffi- 
cient on  which  to  ground  a  motion  to  dissolve  an  injunction,  and 
might  be  treated  as  an  affidavit  in  all  respects;  and  this  view  is 
confirmed,  in  terms,  in  Scjioonmaker  v.  The  Protestant  Reformed 
Dutch  Church  of  Kingston,  5  How.  265. 

In  Milliken  v.  Carey,  however,  5  How.  272,  3  C.  E.  250,  the 
contrary  proposition  was  maintained,  and  it  was  held,  that  a 
verified  complaint  cannot  be  treated  as  an  affidavit,  for  the  pur- 
poses of  such  an  application.  "  The  terms  pleading,  and  affida- 
vit," said  the  learned  judge,  "have  never  been  understood  as 
synonymous.  The  Code  has  not  confounded  their  meaning,  or 
abolished  their  use,  or  given  them  any  new  definition.  I  don't 
feel  at  liberty  to  substitute  a  pleading,  as  the  foundation  of  an 
order,  where  the  law  has  expressly  required  an  affidavit."  See, 
also,  Servoss  v.  Stannard,  2  C.  R.  56. 

This  opinion,  however,  stands  alone,  and  is  controverted  by 
the  subsequent  cases  of  Smith  v.  Reno,  6  How.  124 ;  1  C.  R. 
(K  S.)  405  ;  and  Minor  v.  Terry,  6  How.  208 ;  1  C.  R.  (N.  S.) 
384.  In  the  last,  the  doctrine  upon  the  subject  is  stated  in  these 
terms:  "In  many  cases,  the  facts  are  so  stated,  that  no  addi- 
tional affidavit,  beyond  that  verifying  the  complaint,  will  be- 
come necessary,  except  in  cases  where  the  plaintiff  cannot  swear 
to  all  the  facts  from  positive  knowledge.  In  such  a  case,  it  was. 
always  necessary  to  have  the  affidavit  of  a  third  person.  It 
seems  to  me  that,  where  the  complaint  states  all  the  facts  neces- 
sary to  lay  a  foundation  for  the  injunction,  and  the  plaintiff 
swears  to  this  positively,  it  is  too  narrow  a  construction  of  the 


262  INJUNCTION. 

Code,  not  to  regard  the  complaint,  thus  verified,  as  an  affidavit. 
It  would  be  an  useless  act  to  restate  all  the  facts  of  the  complaint 
over  again  in  the  form  of  an  affidavit,  and  I  cannot  think  the 
legislature  intended  it  to  be  done."  The  decision  in  Milliken 
v.  Carey,  is  there  characterized  as  "  founded  on  too  great  a  re- 
finement in  the  construction  of  the  statute."  See,  also,  Florence 
v.  Bates,  2  Sandf.  675  ;  2  C.  K.  110 ;  and  Hascall  v.  Madison 
University,  8  Barb.  171 ;  ICE.  (N.  S.)  170. 

The  sufficiency  of  a  verified  pleading,  as  an  affidavit,  under 
the  statutory  remedy  as  to  a  forcible  entry  and  detainer,  was 
maintained,  on  similar  grounds,  in  Porter  v.  Cass,  7  How.  441. 
An  injunction  founded  on  the  complaint  alone  was  sustained 
in  Churchill  v.  Bennett,  8  How.  309 ;  and,  in  Furniss  v.  Brown, 
8  How.  59,  another,  grounded  on  a  complaint  held  bad  for  mis- 
joinder, was  nevertheless  directed  to  stand,  in  the  event  of  the 
complaint  being  duly  amended,  according  to  the  leave  there 
given. 

The  point  may  therefore  be  looked  upon  as  settled  by  prepon- 
derating authority,  that  a  fully  verified  pleading  may  be  used  as 
an  affidavit,  on  an  application,  either  to  obtain  or  dissolve  an 
injunction.  It  must,  however,  be  directly  and  distinctly  sworn 
to.  If  not,  the  affidavits  of  third  parties  will,  as  heretofore,  be 
necessary  on  which  to  ground  the  application.  See  /Smith  v. 
Reno,  above  cited. 

The  principle  that  the  statements  in  the  complaint  must,  of 
necessity,  be  distinct  and  positive,  in  order  to  the  granting  of 
an  injunction,  applies  d  fortiori  to  the  affidavits  of  third  parties, 
when  introduced.  Unless  they  possess  those  characteristics,  they 
cannot  avail,  either  for  the  purpose  of  maintaining  or  vacating 
an  injunction.  See  Pomroy  v.  Hindmarsh,  Eoome  v.  Webb, 
Jones  v.  Atterbury,  and  Burkhardtv.  Sanford,  above  cited,  and  the 
other  cases  there  referred  to.  Sec  also  Mann  v.  Brooks,  7  How. 
449;  Olssm  v.  SmiiJ,,  7  How.  481. 

To  give  any  precedent  in  relation  to  the  affidavits  to  be  used 
on  a  motion  for  injunction,  would  of  course  be  impracticable. 
The  skeleton  form  of  an  order,  will  be  found  in  the  Appendix. 
Of  course,  the  terms  of  the  injunction  itself,  will  necessarily 
depend  upon  the  circumstances,  and  the  relief  sought,  in  each 
particular  case. 

W'licn  applied  for  at  the  outset  of  the  action,  the  injunction 
will,  of  course,  be  expartet  without  any  notice  whatever  to  the 


INJUNCTION.  263 

defendant,  and  the  order  may  be  obtained  before  service  of,  and 
may  accompany  the  summons.  The  application,  it  would  seem, 
mav  also  be  made  ex  parte,  after  the  defendant  has  appeared, 
and  before  answer,  unless  the  court  prescribe  the  contrary,  as 
to  which  see  hereafter. 

After  answer,  however,  the  injunction  is  no  longer  obtain- 
able ex  parte,  but  notice  must  be  given,  either  in  the  usual  form, 
or  by  order  to  show  cause.  The  provision  for  this  purpose  is 
thus  made  by  sec.  221 : 

§  221.  An  injunction  shall  not  be  allowed  after  the  defendant  shall 
have  answered,  unless  upon  notice,  or  upon  an  order  to  show  cause ; 
but,  in  such  case,  the  defendant  may  be  restrained,  until  the  decision  of 
the  court  or  judge,  granting  or  refusing  the  injunction. 

Where  the  injury  sought  to  be  prevented  is  in  actual  pro- 
gress, the  order  to  show  cause,  with  an  interim  stay  of  proceed- 
ings, will,  of  course,  be  the  more  advisable  form  in  which  to 
shape  an  application  of  this  nature.  Where  the  injury  is  not 
immediate,  notice  in  the  ordinary  form  may  suffice. 

In  relation  to  the  proof  which  may  be  made  use  of  by  the 
defendant,  in  resisting  an  application  of  this  nature,  see  subse- 
quent portion  of  the  chapter,  under  the  head  of  Motion  to 
vacate. 

Security.'] — Before,  however,  an  injunction  can  be  obtained 
under  any  circumstances,  security  must  be  given  by  the  appli- 
cant. The  following  is  the  provision  of  the  Code  on  the  sub- 
ject, as  contained  in  sec.  222  : 

§  222.  Where  no  provision  is  made  by  statute,  as  to  security  upon 
an  injunction,  the  court  or  judge  shall  require  a  written  undertaking  on 
the  part  of  the  plaintiff,  with  or  without  sureties,  to  the  effect  that  the 
plaintiff  will  pay  to  the  party  enjoined,  such  damages,  not  exceeding 
an  amount  to  be  specified,  as  he  may  sustain  by  reason  of  the  injunction, 
if  the  court  shall  finally  decide  that  the  plaintiff  was  not  entitled  thereto. 
The  damages  may  be  ascertained  by  a  reference,  or  otherwise,  as  the 
court  shall  direct. 

The  above  provisions  are  generally  applicable  to  all  cases 
where  the  application  is  made  before  judgment,  and  supersede 
the  provisions  of  the  Eevised  Statutes  in  relation  to  such  appli- 


264  INJUNCTION. 

cations.  Another  class  of  injunctions,  of  a  totally  different 
nature,  is  provided  for,  and  the  security  in  relation  thereto  pre- 
scribed by  art.  V.,  title  IL,  chap.  L,  part  III.,  of  the  Kevised  Sta- 
tutes, 2  E.  S.  188  to  191 ;  i.  e.,  those  by  which  proceedings  in 
an  action  are  stayed,  after  judgment  or  verdict.  In  these  cases, 
the  amount  found  due  to  the  plaintiff  for  debt  and  costs,  will  be 
required  to  be  deposited  by  the  party  applying,  in  addition  to 
the  usual  surety  bond ;  with  power,  however,  to  the  court  to 
dispense  with  those  securities,  in  cases  where  the  judgment  or 
verdict  in  question  is  impeached  for  actual  fraud. 

The  security  prescribed  by  the  provisions  of  the  Revised  Sta- 
tutes, must  still  be  taken,  in  all  cases  to  which  those  provisions 
apply.  Sec.  222  only  applies  to  cases  in  which  no  provision  is 
made  by  statute  relative  to  such  security.  In  all  others,  the 
forms  of  the  Revised  Statutes  must  be  complied  with.  Cook  v. 
Dickerson,  2  Sandf.  691.  In  the  same  case,  it  is  decided  that  a 
mere  failure  to  perform  a  promise,  is  not  such  a  fraud,  as  will 
authorize  a  judge  at  chambers  in  dispensing  with  the  deposit 
and  security  above  referred  to. 

In  Sheldon  v.  AUerton,  1  Sandf.  700,  1  C.  R.  93,  the  practice 
in  the  Superior  Court,  in  reference  to  security  upon  injunctions, 
is  stated  as  follows : 

1.'  The  undertaking  under  this  section  (222)  must  be  ap- 
proved and  filed  with  the  clerk  of  the  court. 

2.  In  general,  an  undertaking  will  be  required  on  an  order 
restraining  the  defendant  temporarily,  in  connection  with  an 
order  to  show  cause. 

3.  The  plaintiff's  own  undertaking  will  not  be  received,  un- 
less he  justify  as  being  a  freeholder  and  householder,  and  worth 
double  the  sum  specified,  above  all  his  debts  and  liabilities. 

4.  A  surety,  when  one  is  required,  must  justify  in  like 
manner. 

5.  A  plaintiff  residing  out  of  the  State,  must  give  a  resident 
surct}',  to  obtain  an  injunction. 

The  form  of  an  undertaking  of  this  nature  will  be  found  in 
tin'  Appendix.  The  amount  specified  should  be  fixed,  with 
reference  I"  tin;  value  of  the  matter  in  question,  and  must  be 
sufficient.  Where  the  sum  is  not  large,  it  may  be  prudent  to 
insert  double  tin-  amount  in  the  first  instance;  but  the  whole 
mattes  rests  in  lie;  discretion  of  the  judge,  who  may  fix  any 
proportion  which  may  appear  reasonable  to  him. 


INJUNCTION.  265 

Application  on  Notice,  or  Order  to  show  Caused — An  applica- 
tion for  an  injunction,  wnether  ex  parte  or  opposed,  must  in  all 
cases  be  grounded  upon  security,  as  above.  An  ex  parte  appli- 
cation, even  before  answer,  will  not,  however,  in  all  cases  be 
granted  as  of  course.  The  following  provision  to  the  contrary 
is  made  by  sec.  223: 

§  223.  If  the  court  or  judge  deem  it  proper  that  the  defendant,  or 
any  of  the  several  defendants,  should  be  heard  before  granting  the  in- 
junction, an  order  may  be  made,  requiring  cause  to  be  shown,  at  a  spe- 
cified time  and  place,  why  the  injunction  should  not  be  granted  ;  and 
the  defendant  may  in  the  meantime  be  restrained. 

In  cases  where  the  plaintiffs  remedy  is  at  all  of  a  doubtful 
nature,  this  course  will,  in  all  probability,  be  adopted  by  the 
court.  The  argument  on  the  merits  of  the  injunction  then 
comes  on  in  due  course,  on  the  return  of  the  order  to  show  cause, 
but  an  interim  restraint  should  not  be  forgotten  to  be  provided 
for,  where  the  injury  is  actually  existent. 

On  service  of  an  order  of  this  nature,  copies  of  the  affidavits 
on  which  the  injunction  is  applied  for  should  be  served  with  it, 
as  on  an  ordinary  motion. 

In  Cases  against  Corporations  ] — The  following  special  provi- 
sions are  made  by  sec.  224,  in  relation  to  the  granting  of  injunc- 
tions against  corporations : 

§  224.  An  injunction  to  suspend  the  general  and  ordinary  business 
of  a  corporation  shall  not  be  granted,  except  by  the  court,  or  a  judge 
thereof.  Nor  shall  it  be  granted,  without  due  notice  of  the  application 
therefor,  to  the  proper  officer?  of  the  corporation,  except  where  the 
people  of  this  State  are  a  party  to  the  proceeding,  and  except  in  pro- 
ceedings to  enforce  the  liability  of  stockholders  in  corporations  and 
associations  for  banking  purposes,  after  the  first  day  of  January,  one 
thousand  eight  hundred  and  fifty,  as  such  proceedings  are  or  shall  be 
provided  by  law  ;  unless  the  plaintiff  shall  give  a  written  undertaking, 
executed  by  two  sufficient  sureties,  to  be  approved  by  the  court  or 
judge,  to  the  effect  that  the  plaintiff  will  pay  all  damages,  not  exceed- 
ing the  sum  to  be  mentioned  in  the  undertaking,  which  such  corpora- 
tion may  sustain,  by  reason  of  the  injunction,  if  the  court  shall  finally 
decide  that  the  plaintiff  was  not  entitled  thereto.  The  damages  may  be 
ascertained  by  a  reference,  or  otherwise,  as  the  court  shall  direct. 


266  INJUNCTION. 

§  93.  Service  of  Injunction. 

The  order  for  the  injunction,  when  obtained,  must  be  duly 
served  upon  the  defendant  sought  to  be  restrained,  personally, 
the  proceeding  being  one  to  bring  a  party  into  contempt.  See 
sec.  418.  Under  sec.  220,  as  above  noticed,  a  copy  of  the  affida- 
vit on  which  it  is  granted  must  be  served  with  the  injunction. 

According  to  the  old  practice,  it  was  necessary  that,  at  the 
time  of  service,  the  original  injunction  should  be  shown  to  the 
defendant.  This  rule  still  holds  good  with  reference  to  the 
injunction  order.  It  must  be  so  produced,  and,  if  this  be  omit- 
ted, it  will  not  suffice  to  found  a  proceeding  for  contempt, 
though  it  may  be  sufficient  as  a  notice,  for  the  purpose  of 
saving  the  plaintiff's  rights.     Coddington  v.  Webb,  4  Sandf.  639. 

The  service  of  an  injunction  order  on  the  attorney  instead  of 
the  party,  will  be  not  merely  insufficient  for  the  purposes  of 
enforcement,  but  positively  irregular.  Becker  v.  Hager,  8  How. 
68.  It  will  not,  however,  furnisli  any  reason  for  setting  aside 
the  order. 

The  same  is  the  case,  with  reference  to  an  omission  to  serve 
with  the  injunction  the  papers  upon  which  it  was  granted.  Pen- 
field  v.  White,  8  How.  87.  The  peculiar  form  of  injunction  in 
supplementary  proceedings  after  judgment  is,  however,  mi 
generis,  and  is  not  in  anywise  affected  by  the  proceedings  in 
this  chapter,  either  as  to  service  or  otherwise.  Green  v.  Bid- 
lard,  8  How.  313. 

Where  an  injunction  is  directed  against  a  corporation,  it 
is  binding,  not  merely  on  the  corporate  body,  but  also  on  the 
individuals  composing  it,  who  are  equally  liable  for  disobedi- 
ence, as  if  they  were  named  in  the  process.  Service  upon  the 
Mayor  of  the  City  of  New  York,  was  accordingly  held  to  be 
sufficient,  to  bind  every  member  of  the  corporation,  individually, 
whose  personal  action,  as  such,  the  order  was  designed  to  con- 
trol, and  to  render  such  members  individually  liable  for  a  con- 
tempt,  for  acts  of  disobedience  to  that  order.  Davis  v.  The  City 
New  York%  I  Duer,  451.  A  party  standing  in  that  capacity 
may  be  BO  punished,  when  he  has  designedly  done  an  act  of  this 
description,  knowing  that  such  an  order  had  been  granted, 
although,  at  the  time,  it  had  not  been  served  or  entered.  The 
People  v.  Compton^  J  Duer,  512,  affirmed  by  the  Court  of  Ap- 
peals in  The  People  v.  Sturtevant,  3ist  December,  1853. 


INJUNCTION.  267 

Where  the  injunction  is  founded  on  the  complaint,  as  usually 
the  case,  it  will,  of  course,  be  the  most  convenient  practice  to 
serve  the  summons  at  the  same  time,  and  annexed  to  the  copy 
complaint  served  with  the  injunction.  It  will  not  be  necessary, 
in  this  case,  to  make  an  additional  copy  of  the  latter,  though  in 
strictness  it  is  used  in  a  double  capacity.  Nor,  when  the  injunc- 
tion has  been  granted  on  notice,  and  the  complaint  has  been  pre- 
viously served  in  the  action,  will  it  be  necessary  to  re-serve  the 
latter  as  an  affidavit.  A  notice  should  however  accompany  the 
order,  that  it  is  granted  upon  the  complaint,  of  which  a  copy 
has  been  already  served,  as  well  as  upon  the  other  papers  which 
may  accompany  it. 

§  94.  Defendant's  Course  in  order  to  oppose  or  vacate. 

Where  Plaintiff  moves  on  Notice  or  Order  to  show  Cause.'] — 

The  defendant  will  be  entitled  to  oppose  the  granting  of  the 
motion,  on  his  answer,  if  sworn  to,  and  likewise  on  supple- 
mentary affidavits ;  or  on  the  latter  alone,  if  thought  expe- 
dient, or  if  the  answer  be  not  ready.  If  new  matter,  in  avoid- 
ance of  the  plaintiff's  case,  be  set  up  by  the  answer  or  affida- 
vits, the  plaintiff  will  be  entitled  to  introduce  affidavits  in 
reply  to  such  new  matter.  The  affidavits  in  question  must, 
however,  be  strictly  confined  to  such  new  matter.  If  the  an- 
swer be  merely  responsive,  it  cannot  be  contradicted  on  affida- 
vit; Florence  v.  Bates,  2  C.  E.  110;  2  Sandf.  675;  and,  where 
the  legal  right  of  the  plaintiff  is  denied,  either  by  the  answer  or 
by  affidavit,  as  broadly  as  it  is  asserted,  the  application  stands 
on  the  same  ground,  and  should  be  governed  by  the  same  rule, 
as  where  the  whole  equity  of  the  complaint  is  denied  by  the 
answer;  under  which  circumstances,  according  to  the  well-settled 
Equity  practice,  the  defendant  is  entitled  to  have  the  injunction 
dissolved.     Perkins  v.  Warren,  6  How.  341. 

Motion  to  Vacate.] — Where  an  injunction  is  granted  upon 
notice,  a  motion  to  vacate  or  modify  it,  will  not,  under  ordinary 
circumstances,  be  granted;  though,  on  allegations  of  surprise, 
fraud,  or  of  an  altered  state  of  circumstances,  applications  of 
this  nature  may  be  entertainable.  Where,  however,  the  order 
has  been  granted  ex  parte,  a  motion  to  vacate  may  be  made  in 


268  INJUNCTION. 

all  cases.     The  following  is  the  provision  of  the  Code  upon  the 
subject,  sec.  225: 

§  225.  If  the  injunction  be  granted  by  a  judge  of  the  court,  or  by  ' 
a  county  judge,  without  notice,  the  defendant,  at  any  time  before  the 
trial,  may  apply,  upon  notice,  to  a  judge  of  the  court  in  which  the  ac- 
tion is  brought,  to  vacate  or  modify  the  same.  The  application  may 
be  made  upon  the  complaint,  and  the  affidavits  on  which  the  injunction 
was  granted,  or  upon  affidavits  on  the  part  of  the  defendant,  with  or 
without  the  answer. 

This  application  cannot  be  entertained  without  notice,  under 
any  circumstances.  "Where  an  immediate  dissolution  is  sought, 
an  order  to  show  cause  will  be  the  proper  form ;  where  time  is 
not  so  much  an  object,  an  ordinary  notice  will  suffice. 

The  law  as  to  the  circumstances  under  which  an  injunction 
will  or  will  not  be  maintained,  on  a  motion  to  vacate  or  dissolve 
it.  is  not  affected  by  the  Code,  but  remains  substantially  as 
under  the  late  practice.  The  elementary  treatises  on  the  sub- 
ject, and  also  as  to  injunctions  in  general,  should  accordingly 
be  consulted,  the  present  observations  being,  as  in  other  cases, 
strictly  confined  to  the  practice  under  the  recent  measure. 

It  has  been  held  that,  notwithstanding  the  provisions  of  sec 
324,  that  an  order  made  out  of  court,  without  notice,  may  be  so 
vacated  or  modified  by  the  judge  who  made  it,  a  motion  to 
dissolve  an  injunction  cannot  be  thus  made.  These  provisions 
are  controlled  by  the  section  last  above  cited,  under  which 
notice  is  requisite  in  all  cases.  Mills  v.  Thursby,  1  C.  K.  121. 
In  the  subsequent  case,  however,  of  Bruce  v.  The  Delaware  and 
Hudson  Canal  Company,  8  Uow.  440,  this  conclusion  was  dis- 
sented from,  and  the  court  held  that  the  special  provision  made 
as  above  was  in  addition  to,  and  not  in  substitution  for  the 
powers  in  sec.  o24.  The  court  held,  therefore,  that  it  was  com- 
petent for  a  judge  to  vacate  or  modify  an  injunction  order 
without  notice,  but  that  it  was  not  the  better  practice,  and 
should  never  be  done  unless  under  the  most  urgent  circum- 
stair 

The  motion  to  vacate  or  modify,  may  either  be  grounded  on 
an  alleged  defect  or  irregularity  in  the  plaintiff's  proceedings, 
or  on  an  adverse  equity  set  up  by  the  defendant.  In  the  for- 
mer case,  the  application  Bhould  be  grounded  on  the  papers 
served  by  the  plaintiff,  and  on  them  alone.     Under  these  cir- 


INJUNCTION.  269 

cumstances,  affidavits  will  be  inadmissible  on  either  part,  and 
the  question  will  be  brought  on,  on  those  papers,  and  on  the 
notice  of  motion  or  order  to  show  cause  alone,  without  any 
counter  evidence. 

The  form  of  the  usual  notice  of  motion  to  vacate  an  in- 
junction, will  be  found  in  the  Appendix.  Where  a  modification 
is  sought  alone,  the  terms  of  the  notice  will  of  course  depend 
upon  the  peculiar  circumstances.  To  give  precedents  for  the 
affidavits'  to  be  used  for  either  purpose,  would  be  clearly  im- 
practicable. 

In  Osbom  v.  Lobdell,  2  C.  E.  77,  it  was  considered  that,  on 
moving  to  dissolve  an  injunction  obtained  without  notice,  the 
defendant  must  furnish  proof  of  the  existence  of  the  suit,  and 
of  the  proceedings  in  it.  This  decision  is,  however,  distinctly 
overruled  in  Newbury  v.  Newbury,  6  How.  182,  1  C.  R.  (N.  S.) 
409,  and  is  clearly  at  variance  with  the  well-established  prin- 
ciple that,  in  motions  grounded  upon  the  pleadings  or  proceed- 
ings in  a  suit,  no  formal  proof  of  their  existence  will  be  re- 
quired. Where  an  order  is  taken  by  default,  such  formal  proof 
may  possibly  be  requisite;  but,  where  the  opposite  party  ap- 
pears, it  is  clear  that  he  cannot  properly  object,  and,  above  all, 
to  the  reading  of  papers  actually  served  by  himself.  See  Dar- 
row  v.  Miller,  5  How.  247,  3  C.  E.  241,  and  other  cases  cited 
under  the  heads  of  Pleading  and  Motions. 

Affidavits  on  Motion.'] — Although,  where  the  motion  is  solely 
on  the  ground  of  irregularity,  it  will  be  heard  on  the  original 
papers  alone,  as  above  noticed ;  under  ordinary  circumstances, 
the  application  will  be  more  or  less  grounded  on  a  counter  case 
made  out  by  the  defendant,  which  case  may  be  presented  on 
his  answer  and  affidavits  in  support,  or  on  either,  standing  alone. 
The  following  provision  is  made  by  sec.  226,  in  relation  to  the 
rights  of  the  plaintiff  under  these  circumstances : 

§  226.  If  the  application  be  made  upon  affidavits  on  the  part  of  the 
defendant,  but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  affi- 
davits or  other  proofs,  in  addition  to  those  on  which  the  injunction  was 
granted. 

In  Servoss  v.  Stannard,  2  0.  E.  56,  it  was  held  that,  where  a 
defendant  moves  to  dissolve  an  injunction,  on  complaint  and 
answer  alone,  the  plaintiff  cannot  introduce  affidavits  or  other 


270  INJUNCTION. 

proofs  in  opposition,  in  addition  to  those  on  which  the  injunc- 
tion was  granted.  The  same  doctrine  was  held  in  Hartwell  v. 
Kingsley,  2  C.  R  101,  2.Sandf.  674,  and  further,  that  the  plain- 
tiff's reply  was  equally  inadmissible  in  such  case.  See,  also, 
Millilcen  v.  Carey,  and  Benson  v.  Fash,  before  cited. 

This  principle  doubtless  applies  to  those  cases,  in  which  the 
whole  equity  of  the  complaint  is  denied  by  the  answer.  Where, 
however,  such  is  not  the  case,  the  answer,  if  used  as  an  affidavit 
only,  may  probably  be  contradicted.  Boorne  v.  Webb,  Krom  v. 
Hogan,  Hascall  v.  The  Madison  University,  Florence  v.  Bates, 
Smith  v.  Beno,  and  Minor  v.  Terry,  above  cited,  clearly  lay 
down  the  doctrine  that,  in  a  general  point  of  view,  a  duly  veri- 
fied pleading  must  be  looked  upon  in  the  light  of  an  affidavit, 
and  may  be  so  read;  and  that  it  is  competent  for  the  plaintiff 
to  introduce  affidavits  on  his  part,  in  opposition  to  the  state- 
ments contained  in  a  pleading  so  made  use  of,  in  addition  to 
those  on  which  the  injunction  was  granted. 

In  relation  to  the  effect  of  a  traverse  of  the  plaintiff's  case  by 
the  defendant,  where  the  matter  simply  rests  on  the  contending 
affidavits  of  the  parties,  and  of  the  impossibility  of  maintaining 
a  provisional  injunction  under  these  circumstance,  see  Perkins 
v.  Warreny  6  How.  341,  and,  &  fortiori,  is  this  the  case,  when 
an  answer  has  been  put  in,  denying  the  whole  of  the  plaintiff's 
equity.  Florence  v.  Bales,  2  Sandf.  675,  2  C.  E.  110,  above 
noticed. 

The  denial,  however,  must  be  full,  specific,  and  must  cover 
the  whole  ground.  Thus  in  Litchfield  v.  Pelton,  6  Barb.  187, 
it  was  held  that  a  general  denial  of  fraud  by  a  defendant,  can- 
not be  urged  successfully  against  an  order  for  an  injunction, 
where  facts  are  admitted,  from  which,  the  court  or  a  jury  may 
properly  infer  a  fraudulent  intent.  The  injunction,  in  such  a 
case,  should  be  retained  until  final  judgment.  See  the  same 
principles,  as  laid  down  in  the  subsequent  case  of  Churchill  v. 
Bennett,  8  How.  309. 

plaintiff  is  at  liberty  to  fortify  his  original  claim  for 
an  injunction,  as  set  out  in  the  complaint,  by  additional  affida- 
vit .  Be  cannot,  however,  enlarge  that  claim,  or  prefer  others. 
Hentz  v.  Long  I  hind  Railroad  Company,  13  Barb.  646. 

Where  the  injunction  has  been  granted  on  the  ground  of  a 
fraudulent  disposition  of  property,  the  only  question  on  the 
motion  to  vacate,  will   be,  as  to  the  intent  of  that  disposition; 


INJUNCTION.  271 

affidavits  denying  the  debt  sworn  to  by  the  plaintiff  cannot 
properly  be  received.     Brewster  v.  Hodges,  1  Duer,  609. 

General  Course  of  Proceeding  on  Motion  to  vacate.']  —  An 
order,  continuing,  modifying,  or  vacating  an  injunction,  or 
granting  one  on  notice,  is,  of  course,  reviewable  by  the  general 
term.  It  cannot,  however,  be  carried  up  to  the  ultimate  tri- 
bunal, being  a  matter  exclusively  resting  in  the  discretion  of 
the  court  below.  See  Vandewater  v.  Kelsey,  1  Comst.  583,  3  How. 
338,  2  C.  R  3 ;  Selden  v.  Vermihja,  1  Comst.  534,  3  How.  338, 
1  C.  E.  110.     See,  also,  Genin  v.  Tompkins,  1  C.  E.  (N.  S.)  -115. 

If  the  injunction  be  vacated  or  modified,  a  copy  of  the  order 
must,  of  course,  be  served  by  the  defendant,  on  the  adverse 
attorney.  If,  on  the  contrary,  the  application  be  refused,  or 
omitted  to  be  made,  the  injunction  remains  in  force  until  the 
hearing  of  the  cause,  when,  if  the  plaintiff's  right  to  continued 
relief  of  this  nature  be  made  out,  it  will  form  part  of  the  decree 
to  be  made.  Of  course,  a  decree  of  this  nature  finally  dis- 
charges the  sureties  under  sec.  222,  from  all  liability  under 
their  undertaking. 

In  Furniss  v.  Brown,  8  How.  59,  an  injunction  granted  on  a 
complaint  held  bad  for  misjoinder,  was,  nevertheless,  condition- 
ally continued,  in  the  event  of  the  plaintiff's  amending  accord- 
ing to  the  leave  given. 

Reference  to  ascertain  Damages.] — In  the  event  of  an  injunction 
being  finally  dissolved,  and  of  the  defendant  being  entitled  to 
damages  in  respect  of  its  original  granting,  such  claim  must  be 
asserted  by  action  in  the  ordinary  form.  The  leave  of  the  court 
should  be  applied  for,  in  the  first  instance.  See  Higgins  v.  Allen, 
6  How.  30. 

Where  a  reference  has  been  obtained,  as  to  the  amount  of 
damages  by  reason  of  an- injunction,  the  report  must  be  con- 
firmed, (by  motion  at  special  term,)  before  the  court  can  enter- 
tain an  application,  to  prosecute  the  undertaking  given  upon  the 
issuing  of  that  injunction.  Griffing  v.  Slate,  5  How.  205;  8  G. 
E.  213. 

In  estimating  the  damages  sustained  by  an  injunction,  counsel 
fees  for  defending  the  suit,  and  moving  to  dissolve,  may  properly 
be  included.  Coates  v.  Coates,  1  Duer,  664:.  If  the  injunction 
be  sustained,  the  defendant  will,  on  the  contrary,  be  liable  for 


272  INJUNCTION. 

interest  on  money  retained  in  his 'hands,  where  he  might  have 
paid  it  over  to  the  plaintiff  or  into  court.  MeKnight  v.  Chauncey, 
Court  of  Appeals,  12th  April,  1858. 


§  95.   Violation  of  Injunction. 

So  long  as  an  injunction  remains  in  force,  the  defendant  is 
bound  to  obey  it,  and  any  act  of  disobedience  on  his  part  will 
render  him  liable  to  an  attachment  for  contempt,  in  the  usual' 
form,  as  under  the  old  practice  ;  and  no  application  to  vacate  or 
modify  the  order  can,  as  a  general  rule,  be  entertained,  whilst 
he  is  under  the  operation  of  an  attachment  so  issued. 

In  Krom  v.  Ifogan,  4  How.  225,  it  is  laid  down  with  reference 
to  this  subject ;  1.  That  a  defendant  enjoined,  cannot  plead  that 
he  acted  by  the  authority  of  a  third  person,  though  alleging 
tli at  such  person  had  become  entitled  to  do  the  act  complained 
of,  as  a  defence  against  an  application  for  an  attachment  against 
him  for  disobedience ;  and,  2.  That  it  is  a  sufficient  answer  to 
a  motion  to  vacate  an  injunction,  that  the  defendant  is  in  con- 
tempt for  disobeying  it. 

In  Capet  v.  Parker,  8  Sandf.  662,  1  C.  E.  (N.  S.)  90,  it  was 
similarly  laid  down,  that  no  advice  of  counsel,  and  not  even 
the  declaration  of  the  judge  of  an  inferior  court,  can  justify  a 
party  in  disobeying  an  injunction  order;  and,  if  he  does,  an 
attachment  will  issue. 

In  Grimm  v.  Grimm,  1  C.  E.  (1ST.  S.)  218,  it  was  held,  as  in 
Krom  v.ITogan,  that,  where  an  injunction  has  been  granted  on 

tice,  and  disobeyed,  the  court  will  not  review  the  propriety 
of  granting  the  injunction  in  the  first  instance,  on  motion  for  an 
attachment  against  the  defendant.  If  the  original  order  was 
erroneous,  he  should  have  appealed  from  it;  but,  having  sub- 
mitted  to  the  order  in  the  first  instance,  he  was  bound  to  obey  it. 

An  appeal  from  an  order  granting  an  injunction,  does  not 
the  operation  of  the  injunction,  pending  the  appeal;  not- 
withstanding which,  an  attachment  will  issue  to  punish  the 
party  enjoined,  for  any  violation  of  that  order,  whilst  it  remains 
unreversed.    Storu  v.  Oarlan,  2  Sandf.  738;  3  C.  E.  103. 

The  case  of  Smith  v.  Austin,  1  C.  Et.  (N.  S.)  187,  is,  to  a  cer- 
tain degree,  in  conflict  with  the  decisions  last  cited.  It  was  there 
held    that  a  defendant,  who  had  violated  an  injunction  order, 


INJUNCTION.  273 

might  yet  move  to  vacate  the*  original  order,  on  the  ground  that 
it  had  been  improperly  made  in  the  first  instance.  This  con- 
clusion seems  open  to  considerable  doubt,  and  to  be  overbal- 
anced by  the  weight  of  authorities  to  the  contrary  ;  but,  even 
if  it  be  sound,  it  seems  clear  that  a  defendant,  whilst  in  con- 
tempt, cannot  move  to  vacate,  on  any  other  ground  than  that 
of  the  original  invalidity  or  irregularity  of  the  order;  and  that 
to  submit  to  an  injunction,  however  granted,  whilst  that  in- 
junction remains  unreversed,  is  the  only  really  proper  or  pru- 
dent course. 

In  Poss  v.  Clussman,  3  Sandf.  676,  1  C.  K.  (N.  S.)  91,  although 
the  court  said  they  did  not  intend  to  decide,  whether  simply 
confessing  a  judgment  was  a  violation  of  an  injunction,  restrain- 
ing a  debtor  from  disposing  of  his  property ;  it  was  held  that, 
if  such  confession  be  made  with  the  intent  to  change  the  dispo- 
sition of  the  property  to  the  creditor's  prejudice,  and  has  that 
effect,  it  will  be  a  violation  of  the  injunction,  and  punishable 
accordingly:  The  defendant,  in  that  case,  was  accordingly  fined 
in  the  whole  amount  of  the  plaintiff's  claim,  with  costs,  counsel 
fee,  and  expenses,  and  was  committed  until  the  fine  was  paid. 

In  Furniss  v.  Brown,  8  How.  59,  a  reference  was  granted  to 
take  testimony  in  relation  to  an  alleged  violation  of  an  injunc- 
tion, before  any  final  action  was  taken  thereon.  The  same 
course  was  adopted  in  The  People  v.  Compton,  1  Duer,  512  ;  and, 
on  such  a  reference,  the  defendant,  it  was  held,  is  bound  to  an- 
swer all  such  interrogatories  as  may  be  propounded  to  him. 

The  course  to  be  pursued  for  the  enforcement  of  an  injunc- 
tion by  process  of  contempt,  will  be  found  considered  at  very 
great  length,  in  that  case,  and  on  its  affirmance  by  the  Court  of 
Appeals,  in  The  People  v.  Sturtevant,  Court  of  Appeals,  31st 
Dec,  1853.  See,  likewise,  Davis  v.  The  Mayor  of  New  York,  1 
Duer,  451.  The  subject  of  process  of  that  nature  will  be  fully 
considered  in  a  subsequent  chapter,  under  the  head  of  Execu- 
tion. 


18 


274  ATTACHMENT. 

CHAPTER    IV. 

ATTACHMENT. 


§  96.    Nature  of  Remedy. 

The  provisions  of  the  Code  in  respect  to  this  important 
remedy  are,  in  their  general  spirit,  a  reenactment,  or  rather  a 
fusion,  of  those  contained  in  different  portions  of  the  Kevised 
Statutes,  in  relation  to  the  remedies  thereby  granted  against  the 
property  of  foreign  corporations,  or  of  absconding,  concealed,  or 
non-resident  debtors,  though  with  several  most  important  modi- 
fications. 

The  statutory  provisions  on  the  former  subject,  will  be  found 
in  art.  I.,  title  IV.,  chap.  VII.  of  part.  III.,  sec.  15  to  36  inclu- 
sive, (2  R.  S.  457  to  462 ;)  and  those  as  to  the  latter,  in  art.  I., 
title  I.,  chap.  V.,  part  II.  (2  R.  S.  1  to  15.)  See  also  art.  II.  of 
the  same  chapter,  in  relation  to  debtors  confined  for  crimes. 

A  similar  remedy  exists  on  suits  in  justices'  courts.  See  2  R. 
S.  230  to  233.  See  also  Colver  v.  Van  Valen,  6  How.  102  ;  Bennett 
v.  Brown,  4  Comst.  254 ;  1  C.  R.  (1ST.  S.)  267 ;  Rosenfield  v.  Howard, 
15  Barb.  546.  The  machinery  in  relation  to  the  former  of  the 
subjects  above  mentioned,  appears  to  have  been  the  chief  guide 
taken  in  the  framing  of  that  portion  of  the  Code  now  under 
consideration,  and  has  been  closely  followed,  the  necessary 
changes  being  introduced,  to  make  those  provisions  applicable 
to  attachments  of  whatever  nature. 

The  provisions  in  relation  to  attachments  against  absent  or 
absconding  debtors  are,  on  the  contrary,  for  the  most  part,  swept 
away,  particularly  those  in  relation  to  the  management  of  the 
property,  when  seized,  by  trustees;  and  those  under  which  an 
attachment,  when  issued,  was  rather  :i  proceeding  for  making  a 
debtor's  property  available  for  his  creditors  in  general,  than  a 
mode  of  .obtaining  ;i  preferential  remedy,  by  means  of  superior 
diligence  on  the  part  of  the  applicant.  The  creditor,  under  the 
Revised  Statutes,  seized  for  the  benefit  of  his  class;  under  the 
Code,  his  remedy  is  exclusive,  and  for  his  own  benefit  alone.    It 


ATTACHMENT.  275 

constitutes,  in  fact,  a  species  of  anticipated  seizure  on  execution, 
under  which  the  most  diligent  attains  the  greatest  advantage. 
In  Fraser  v.  GreenhiU,  below  cited,  a  disposition  was  shown  to 
neutralize  the  evident  intent  of  the  Code,  as  above  stated,  and 
to  enable  creditors,  not  parties  to  the  suit  in  which  an  attach- 
ment is  issued,  to  have  themselves  brought  in  as  parties,  by 
amendment,  so  as  to  give  them  the  same  benefit,  as  members  of 
a  class,  which  was  secured  to  them  by  the  Eevised  Statutes; 
but  this  view  seems  untenable,  and  to  be  overruled,  as  below 
noticed. 

§  97.   From  whom,  and  how  obtainable. 

The  provision  of  the  Code,  defining  the  cases  in  whieh  this 
remedy  may  be  obtained,  is  contained  in  sec.  227,  and  runs  as 
follows : 

§  227.  In  an  action,  for  the  recovery  of  money,  against  a  corporation 
created  by  or  under  the  laws  of  any  other  State,  government,  or 
country,  or  against  a  defendant  who  is  not  a  resident  of  this  State,  or 
against  a  defendant  who  has  absconded  or  concealed  himself  as  herein- 
after mentioned ;  the  plaintiff,  at  the  time  of  issuing  the  summons,  or 
at  any  time  afterwards,  may  have  the  property  of  such  defendants  at- 
tached, in  the  manner  hereinafter  prescribed,  as  a  security  for  the  satis- 
faction of  such  judgment  as  the  plaintiff  may  recover. 

The  officers  to  whom  such  application  may  be  made,  and  the 
evidence  on  which  it  must  be  grounded,  are  thus  pointed  out 
by  sees.  228  and  229 : 

§  228.  A  warrant  of  attachment  must  be  obtained  from  a  judge  of 
the  court  in  which  the  action  is  brought,  or  from  a  county  judge. 

§  229.  The  warrant  may  be  issued,  whenever  it  shall  appear  by  affi- 
davit, that  a  cause  of  action  exists  against  such  defendant,  specifying 
the  amount  of  the  claim,  and  the  grounds  thereof,  and  that  the  defend- 
ant is  either  a  foreign  corporation,  or  not  a  resident  of  this  State,  or  has 
departed  therefrom  with  intent  to  defraud  his  creditors,  or  to  avoid  the 
service  of  a  summons,  or  keeps  himself  concealed  therein  with  the  like 
intent. 

The  whole  of  these  provisions  were  first  inserted,  as  an 
amendment,  in  the  Code  of  1849. 

Jurisdiction  of  Officers.] — A  court  of  limited  jurisdiction  has 
no  power  to  issue  an  attachment  against  a  non-resident  debtor, 


27-5  ATTACHMENT. 

unless  such  debtor  have  been  served  with  process  within  its 
limits.  Where,  however,  a  resident  debtor  absconds  or  con- 
ceals .himself,  and  the  application  is  made  on  that  ground,  it 
will  be  maintainable.  Fisher  v.  Curtis,  2  Sandf.  660 ;  2  C.  R. 
62,  above  cited  ;  Perry  v.  Montgomery,  2  Sandf.  661 ;  Cole  v.  L 
Id. ;  nor  will  the  subsequent  appearance  and  answer  of  the  de- 
fendant cure  the  defect,  as  regards  the  original  attachment.  The 
setting  it  aside  under  this  last  state  of  circumstances,  will  not, 
however,  prejudice  the  continuance  of  the  suit,  or  the  issuing 
of  a  second  attachment.  Cole  v.  Kerr,  above  cited.  The  above 
decisions  were  in  relation  to  the  jurisdiction  of  the  Superior 
Court  under  such  circumstances.  And,  in  cases  of  this  descrip- 
tion, every  fact  necessary  to  confer  jurisdiction  must  be  affirm- 
ativelv  shown,  by  direct  and  positive  allegation,  and  not  by 
inference,  however  clear.  See  Payne  v.  Young,  Court  of  Ap- 
peals, 19th  April.  1853. 

In  Granger  v.  Schwartz,  11  L.  0.  346,  it  was  held  that  the  Su- 
rior  Court  had  no  jurisdiction  of  actions  upon  contracts,  when 
all  the  defendants  were  non-residents,  and  no  service  had  been 
made  on  any  of  them.  An  attachment,  issued  against  the  pro- 
perty of  parties  under  these  circumstances,  on  an  affidavit  that 
all  were  non-residents,  was  held  to  be  void.  "Where,  however, 
the  summons  has  been  served  on  any  one  of  several  defendants, 
jointlv  interested,  the  court  will  then  have  acquired  jurisdiction 
under  sec.  33,  and  the  attachment  will  be  good  for  all  pur- 
poses. Where,  therefore,  the  Superior  Court  has  once  acquired 
jurisdiction  of  the  suit  by  service  on  one  of  several  joint  debt- 
ors, it  has  full  cognizance  of  the  cause  for  all  purposes,  and  an 
attachment  may  be  issued  against  the  property  of  others  non- 
resident. In  such  a  case,  there  is  no  longer  any  distinction 
between  its  powers  and  those  of  the  Supreme  Court.  Anon.,  1 
Duer,  6G2. 

The  above  principles  will  likewise,  of  necessity,  hold  good 
with  regard  to  the  Court  of  Common  Pleas  of  New  York. 
The  mayor's  and  recorder's  courts  of  cities  seem,  as  a  general 
rule,  to  have  no  jurisdiction  whatever  against  non-residents. 
See  sec.  33,  above  noticed. 

The  |  thi  justices  of  the  Supreme  Court  are,  however, 

unfettered  by  any  restrictions  of  the  above  nature,  and,  there- 
fore, in  all  cases  in  which  the  jurisdiction  of  the  local  courts  is 
not  clearly  acquired  at  the  time  of  the  application,  that  tribunal 


ATTACHMENT.  277 

will  be  the  more  convenient  forum  of  application ;  as  likewise 
in  all  cases  where  the  attachment  is  sought  to  be  enforced  in 
more  than  one  county,  or  in  any  county  out  of  the  limited 
jurisdiction. 

A  non-resident  plaintiff  labors  under  no  disability  in  this 
respect,  but  may  apply  for  and  obtain  an  attachment  under  the 
Code,  in  the  same  manner  as  if  he  were  a  resident;  though,  it 
seems,  the  law  was  otherwise  under  the  Eevised  Statutes. 
Beady  v.  Stewart,  1  C.  R.  (X.  S.)  297.  In  courts  of  limited  juris- 
diction, however,  he  cannot  sue  non-resident"  defendants.  See 
Payne  v.  Young,  above  cited.  Beady  v.  Stewart  is  also  authority 
that  an  attachment  is  issuable  against  property  of  a  non-resident 
debtor  Avithin  the  State,  although  both  the  parties  reside,  and 
the  cause  of  action  arose,  in  another  State.  This  doctrine  is, 
though,  only  applicable  to  the  Supreme  Court, 

This  rule  does  not,  however,  hold  good  in  relation  to  a  for- 
eign corporation  suing  another,  unless  the  cause  of  action  has 
arisen,  or  its  subject  be  situate  within  this  State.  Western  Bank 
v.  City  Bank  of  Columbus,  7  How.  238.  See,  also,  Eggleston  v. 
Orange  and  Alexandria  Bailroacl  Company,  1  C.  R.  (X.  S.)  212. 

Belation  to  Summo7is.] — By  sec.  227,  as  above  cited,  the  appli- 
cation for  an  attachment  may  be  made,  "at  the  time  of  issuing 
the  summons  or  at  any  time  afterwards." 

This  issuing  has  no  reference  to  the  time  of  the  actual  service. 
The  summons  will,  for  the  purposes  of  an  attachment,  be  con- 
sidered as  "  issued,"  if  made  out  and  placed  in  the  hands  of  a 
person  authorized  to  serve  it,  and  with  a  bond  fide  intent  to 
have  it  served.  Nor  is  it  necessary,  with  this  view,  to  deliver  it 
to  the  sheriff  with  or  before  the  attachment ;  but  it  may  be 
served  by  any  other  person,  in  the  usual  manner.  Mills  v.  Corbett, 
8  How.  500.  ' 

The  summons  must,  however,  be  actually  issued  at  the  time 
of  the  application,  or  the  court  will  not  have  jurisdiction; 
though  it  is  not  necessary  to  state  that  fact  on  the  affidavits  on 
which  the  application  is  made,  provided  the  fact  be  so,  and  be 
capable  of  being  subsequently  shown.  Conklin  v.  Butcher,  5 
How.  386 ;  1  C.  R.  (N.  S.)  #». 

It  has  been  held  by  the  Superior  Court,  that  an  attachment 
issued  before  actual  service  of  the  summons  was  irregular.  See 
Fislier  v.  Curtis,  2  Sandf.  660 ;  2  C.  R.  62.     This  conclusion  is 


278  ATTACHMENT. 

grounded  upon  the  provision,  that  such  attachment  can  only  be 
issued  in  "an  action,"  and  on  jurisdictional  views  as  regards 
the  limitation  of  the  powers  of  that  court,  to  cases  in  which  the 
necessary  conditions  as  to  residence,  or  service  within  its  limits, 
have  been  previously  performed.  As  regards  cases  in  the 
Supreme  Court,  it  seems  clearly  untenable,  as  it  nullifies,  in 
effect,  the  provision  that  an  attachment  maybe  granted  "at  the 
time  of  issuing  the  summons." 

The  summons  should  not  merely  be  issued,  but  it  should  also 
be  served,  either  collaterally  with,  or  as  soon  as  possible  after 
the  application.  An  order  for  publication  will,  for  the  most 
part,  afford  the  proper  course  to  be  pursued  in  this  respect,  and 
such  order  may  be  applied  for  simultaneously  with  the  attach- 
ment, and,  unless  under  special  circumstances,  upon  the  same 
affidavits,  the  additional  facts  necessary  to  ground  an  order  for 
publication  being  shown  upon  them.  See  this  subject  hereto- 
fore considered  under  the  head  of  Summons ;  or,  if  thought 
advisable,  additional  or  separate  affidavits  may  be  used. 

In  Hulbert  v.  The  Hope  Mutual  Insurance  Company,  4  How. 
275,  affirmed  on  appeal,  4  How.  415,  service  on  the  president  of 
a  foreign  corporation,  temporarily  within  the  State,  was  held  to 
be  good  service,  and  to  afford  sufficient  notice  to  such  corpora- 
tion, that  j^roceedings  were  about  to  be  instituted  against  its 
property.  Service  on  a  managing  agent  of  such  a  corporation 
within  the  State,  will  be  good  ;  but  void,  if  made  on  a  special 
agent  with  limited  powers  only.  Brewster  v.  Michigan  Central 
Railroad  Company,  5  How.  188  ;  3  C.  E.  215.  In  a  case  of  this 
last  description,  therefore,  an  order  for  service  by  publication 
will  be  essential. 

In  Ilernstein  v.  Mathewson,  5  How.  196,  3  C.  K.  189,  it  was 
held  that,  "in  an  action  for  wrong,  against  a  non-resident  de- 
fendant,  an  attachment  might  be  issued,  and  the  defendant's 
property  levied  under  it,"  as  well  as  where  the  action  is  on 
contract;  but  that,  in  the  former  case,  unless  the  defendant 
could  he  personally  served,  or  voluntarily  appeared  in  the  suit, 
the  plaintiff  li.nl  no  remedy,  because  service  by  publication 
could  net  be  made,  in  such  an  action;  and,  if  such  service  fail 
to  be  made,  it  will  l>e  proper  to  discharge  the  attachment,  be- 
cause it.  OOuld  be  "I'  n<>  avail  to  the  plaintiff,  unless  the  defend- 
ant voluntarily  appeared.  This  defect  is  cured  by  the  last 
amendment,  under  which,  service  by  publication  is  now  admis- 


ATTACHMENT.  279 

siblc  in  all  cases.  Where,  however,  such  an  order  cannot  be 
obtained,  and  yet  personal  service  cannot  be  made,  the  princi- 
ple here  laid  down  might  apply ;  and,  after  a  reasonable  time 
allowed,  an  attachment,  unaccompanied  or  not  followed  up  by 
service  of  the  summons,  might  be  held  to  be  no. longer  main- 
tainable. 

The  issuing  of  an  attachment  is  a  sufficient  commencement  of 
a  suit,  for  the  purpose  of  conferring  jurisdiction,  and  an  action, 
so  commenced,  will  not  be  defeated  by  the  subsequent  death  of 
the  defendant,  before  the  expiration  of  an  order  for  publication, 
but  may  be  continued  against  his  representatives.  Moore  v. 
Thayer,  10  Barb.  258 ;  6  How.  47 ;  3  C.  E.  176.  See  the  same 
doctrine  confirmed,  and  a  creditors'  lien  under  an  attachment 
sustained ;  though  subsequent  irregularities  were  alleged,  but 
which  the  court  held  must  be  taken  advantage  of  by  motion, 
and  could  not  be  attacked  collaterally.  Burkhardtv.  Sanford,  7 
How.  329.  See,  likewise,  Mills  v.  Corbett,  8  How.  500 ;  Thomp- 
son v.  Dickerson,  12  Barb.  108;  In  re  Grisiuold,  13  Barb.  412. 
For  this  last  purpose,  the  regularity  of  the  attachment  is  not  a 
jurisdictional  question.  The  issuing  that  process  is  not  a  com- 
mencement of  the  action,  so  far  as  regards  ulterior  proceedings 
therein,  but  merely  a  provisional  remedy. 

Against  Foreign  Corporations .] — The  powers  of  the  court  in 
this  respect  are  limited  by  the  provisions  of  sec.  427.  Where, 
therefore,  both  plaintiff  and  defendant  were  foreign  corporations, 
and  the  cause  of  action  arose  and  its  subject  remained  else- 
where, an  attachment  was  held  not  to  be  maintainable.  Western 
Bank  v.  City  Bank  of  Columbus,  7  How.  238.  See,  likewise, 
Eggleston  v.  Orange  and  Alexandria  Railroad  Company,  1  C.  E. 
(N.  S.)  212. 

Against  Non-resident  Debtors.'] — The  cases  on  this  subject  are 
more  numerous,  and  involve  a  greater  variety  of  questions. 

Actual  non-residence,  without  regard  to  the  domicil  of  the 
debtor,  is  what  is  contemplated  by  the  statute.  Where,  there- 
fore, a  debtor  went  to  a  foreign  state,  and  remained  absent  for 
three  years,  he  was  held  to  be  a  non-resident  within  the  mean- 
ing of  the  statute,  though  he  had  all  the  time  intended  to  return 
to  the  country.  Haggart  v.  Morgan,  4  Sandf.  198,  affirmed  by 
the  Court  of  Appeals,  1  Seld.  423.     See,  likewise,  a  similar  dis- 


280  ATTACHMENT. 

tinction  between  residence  and  domicil,  as  drawn  in  Bartlett  v. 
The  Mayor  of  New  York,  5  Sandf.  44.  See,  also,  Clason  v.  Corley, 
5  Sandf.  454. 

"Where  a  party,  originally  a  resident  in  the  State,  had  after- 
wards emigrated  to  Indiana,  and,  having  returned,  was  living 
in  his  father-in-law's  family  in  New  York,  looking  out  for  an 
opportunity  to  get  into  business,  but  as  yet  undetermined  where 
he  should  finally  settle ;  the  court,  both  at  special  and  in  gene- 
ral term,  decided  that  he  was  a  non-resident  within  the  meaning 
of  the  foregoing  section,  and  refused  to  discharge  an  attachment 
issued  against  his  property.     Burrows  v.  Miller,  4  How.  349. 

The  question  of  non-residence  has  been  already  considered 
under  the  head  of  Service  by  Publication,  sec.  45.  See  that 
section  and  the  analagous  cases  there  cited.  See,  also,  the  pre- 
vious division  of  the  present  section  in  relation  to  an  action  by 
one  non-resident  corporation  against  another.  See,  likewise, 
the  case  of  Rosenfield  v.  Howard,  15  Barb.  546,  cited  in  the  next 
division  of  this  section. 

An  attachment  against  partnership  property,  was  held  to 
have  been  regularly  issued  as  against  non-resident  partners, 
although  one  of  the  members  of  the  firm  was  resident  within 
the  State,  and  had  been  there  served  with  process.  Brewster 
v.  Honigshurger,  2  C.  R.  50. 

In  BmxI  v.  Walker,  12  Barb.  298 ;  1  C.  R.  (N.  S.)  329,  an 
attachment  issued  against  a  non-resident  partner  was  likewise 
maintained. 

The  same  was  done  by  the  Superior  Court  in  Anon.,  1  Duer, 
662,  it  being  further  held  that,  where  that  court  had  once  ac- 
quired jurisdiction  of  the  suit,  by  service  on  the  resident  part- 
ner, its  powers  in  relation  to  the  property  of  non-residents  were 
the  same  as  those  of  the  Supreme  Court. 

Though  issuable,  the  effect  of  such  an  attachment  is  however 
limited,  and  will  only  be  good  as  against  the  interests  of  the 
absent  partner.  Partnership  property,  in  the  hands  of  those 
win)  are  resident,  cannot  be  seized  under  it.  It  is  only  the 
individual  interest  which  is  liable  to  seizure.  Stoutenburgh  v. 
Vanderiburgh,  7  How.  22!);  Sears  v.  Gcarn,  7  How.  383.  See, 
likewise,  Travis  v.  ZbWew,  7  How.  90. 

This  remedy  cannot  cither  be  maintained  against  the  property 
of  a  joint  debtor,  who  has  not  been  served  with  process,  in  pro- 
ceedings against  him  as  a  joint  debtor,  founded  on  a  judgment 


ATTACHMENT.  281 

obtained  against  the  partnership,  by  service  on  another  of  its 
members.  An  action  must,  in  such  case,  be  duly  commenced 
against  him  personally,  grounded  on  a  proper  statement  of  the 
circumstances,  and  not  on  the  judgment  alone.  Oakley  v.  Aspin- 
wall,  4  Comst.  513.     See,  also,  10  L.  0.  79,  1  Duer,  1. 

.In  relation  to  a  statement  as  to  a  departure  from  the  State, 
made  on  mistaken  grounds,  see  Gilbert  v.  Tompkins,  1  C.  E. 
(N.  S.)  12,  cited  under  the  next  division  of  this  section. 

Against  absconding  or  concealed  Debtors.'] — In  Morgan  v.  Avery, 
7  Barb.  656,  2  C.  E.  91,  affirmed  on  appeal,  2  C.  E.  121,  the 
law  as  to  the  statements,  which  will  suffice  to  establish  that 
the  defendant  has  departed  with  intent  to  defraud  his  creditors, 
or  to  avoid  service  of  a  summons,  is  laid  down  as  follows.  It 
is  not  necessary  that  such  departure  should  have  been  made  by 
the  defendant  secretly,  as  under  the  Eevised  Statutes:  "If  he 
have  departed  ever  so  openly,  it  will  be  enough,  if  the  re- 
quired intent  is  made  out."  After  stating  the  facts  of  the  case, 
which  showed  that  such  departure,  in  that  instance,  was  not 
secret,  but  was  nevertheless  made  under  circumstances  of  con- 
siderable embarrassment,  and  some  suspicion,  the  learned  judge 
proceeds  as  follows:  "I  repeat  that  no  imputation  of  an  intent 
to  defraud  his  creditors  necessarily  follows  from  the  facts  of  the 
case,  nor  is  it  necessary  to  cast  any  such  imputation,  in  order 
to  sustain  the  attachment." 

"'If,  finding  himself  irretrievably  involved,  so  that  his  failure 
must  soon  happen,  he  has  desired  to  be  out  of  the  way  of  his 
creditors  at  the  time  it  should  happen,  although  he  had  left  all 
his  property  behind  him,  and  although  he  was  desiring  to  get 
into  other  business,  whereby  he  might  ultimately  retrieve  his 
affairs,  the  inference  may  very  properly  be  drawn,  that  he  de- 
parted the  State  with  intent  to  avoid  the  service  of  a  summons. 
Such,  at  all  events,  seems  to  me  to  be  the  highest  probability 
in  this  case,  and  I  cannot,  therefore,  feel  myself  warranted  in 
setting  aside  the  attachment  as  improvidently  issued." 

In  the  Superior  Court,  however,  a  more  restricted  view  is 
taken  as  to  the  propriety  of  granting  this  species  of  remedy, 
and,  under  very  similar  circumstances  to  those  reported  in 
Morgan  v.  Avery,  an  attachment  has  been  refused,-  but  an  order 
for  service  by  publication  granted,  on  an  application  for  both 
remedies  on  the  same  affidavits. 

In  Camman  v.  Tompkins,  1  C.  E.  (N.  S.)  12,  the  law  on  the 


282  ATTACHMENT. 

subject  of  concealment  of  a  defendant,  is  laid  down  in  extenso. 
The  defendant,  in  that  case,  after  his  insolvency  became  mani- 
fest, had  remained  out  of  the  way  a  few  hours,  until  he  had 
succeeded  in  completing  a  disposition  of  his  property  without 
molestation  from  his  creditors,  and  then  returned  to  his  house, 
and  delivered  himself  up  to  an  officer  who  held  a  warrant  to 
arrest  him.  The  learned  judge  held  that  this  was  a  sufficient 
concealment  to  bring  the  case  within  the  provisions  of  this 
chapter.  "It  is  not  necessary  that  a  summons  should  have 
issued,  and  an  ineffectual  attempt  to  serve  it  made.  It  was 
enough,  if  the  party  intentionally  so  disposed  of  himself,  that 
one  could  not  have  been  served."  "It  is  concealment,  to  avoid 
the  service  of  process,  no  matter  whether  for  an  hour,  a  day, 
or  a  week ;  no  matter  whether  with  a  view  to  defraud  credit- 
ors, or  merely  to  have  time  to  make  a  disposition,  lawful  or 
otherwise,  of  his  property,  before  his  creditors  got  at  him.  It 
is  placing  himself  designedly,  so  that  his  creditors  cannot  reach 
him  with  process ;  and  that,  it  seems  to  me,  is  clearly  the  con- 
cealment which  the  statute  contemplates." 

In  Genin  v.  Tompkins,  12  Barb.  265,  the  above  doctrine  was 
sustained  to  the  full  extent  by  the  general  term,  on  appeal 
from  the  foregoing  and  two  other  collateral  decisions. 

In  Gilbert  v.  Tompkins,  1  C.  R.  (N.  S.)  p.  16,  where  the 
plaintiffs  had,*in  their  affidavits,  stated  the  facts  on  which  they 
applied  for  an  attachment,  but  had  drawn  a  wrong  conclusion 
from  those  facts,  inferring  that  the  defendant  had  departed  the 
State,  whereas  he  had  actually  concealed  himself  within  it,  the 
attachment  issued  on  those  affidavits  was  sustained,  as  being 
warranted  by  the  facts  themselves,  without  the  inference. 

In  Rosenfield  v.  Howard,  15  Barb.  546,  an  affidavit,  of  a  simi- 
lar nature  to  the  above,  was  held  to  be  a  sufficient  statement 
to  authorize  the  issuing  of  a  justices'  attachment,  on  the  ground 
of  an  intended  fraudulent  disposal  of  property,  and  to  prevent 
a  reversal  of  his  proceedings  for  insufficiency  of  proof. 

1"  relation  to  the  averments  which  would  or  would  not  have 
been  Buflicienl  to  warrant  the  issuing  of  an  attachment,  on  si- 
milar grounds,  under  the  Revised  Statutes,'  sec  Castellanos  v. 
Jones,  1  Seld.  Mil. 

§  98.    Form  of  Affidavit. 
The  skeleton  form  of  an  affidavit  on  which  to  ground  an  ap- 
plication for  an  attachment,  will  be  found  in  the  Appendix. 


ATTACHMENT.  283 

The  statement  of  facts  will,  of  course,  vary  according  to  the 
circumstances.  It  must  be  clearly  shown  upon  such  affidavit, 
1st.  That  a  cause  of  action  exists,  specifying  the  amount  and 
grounds  of  claim ;  and  2d.  That  the  defendant  comes  within 
some  one  or  more  of  the  different  categories  pointed  out  in  sec. 
229.  The  chapter  on  summons,  and  the  cases  there  cited  in 
relation  to  the  analogous  remedy  of  service  by  publication,  may 
be  advantageously  referred  to,  as  regards  the  preparation  of 
these  affidavits.  Of  course  the  utmost  care  must  be  taken,  and 
the  terms  of  the  statute  must  be  throughout  strictly  complied 
with,  or  jurisdiction  will  not  be  conferred.  A  mere  allegation 
in  the  words  of  the  statute  will  not  suffice ;  facts  must  be  stated 
in  all  cases.  See  Frost  v.  Willard,  9  Barb.  440,  and  other  cases 
to  that  effect,  cited  in  the  preceding  chapters. 

In  Conldin  v.  Dutcher,  5  How.  386,  1  C.  E.  (N.  S.)  49,  it  was, 
however,  held  to  be  the  rule  that,  "if  enough  is  set  forth  in  the 
affidavit,  to  call  upon  the  officer  for  the  exercise  of  his  judg- 
ment upon' the  weight  and  importance  of  the  evidence,  it  is  suf- 
ficient. It  is  only  where  there  is  a  total  want  of  evidence  upon 
some  essential  point,  that  the  officer  will  fail  to  acquire  juris- 
diction. (4  Hill,  602  ;  20  Wendell,  77.)"  See  similar  principles 
laid  down  with  reference  to  a  justice's  attachment,  in  Rosen  field 
v.  Howard,  15  Barb.  546. 

Where,  however,  the  affidavits  were  clearly  insufficient  to 
bring  the  case  within  the  terms  of  the  statute,  an  attachment 
issued  under  the  Revised  Statutes  was  held  to  be  void,  and  to 
be  no  protection  to  an  officer  acting  under  it.  Castellanos  v. 
Jones,  1  Seld.  164.  See,  also,  Staples  v.  Fairchild,  3  Comst.  41, 
and  Payne  v.  Young,  below  cited. 

Where  the  application  is  made  to  a  court  of  limited  juris- 
diction, the  facts  necessary  to  confer  that  jurisdiction  must  be 
affirmatively  shown,  by  special  allegation,  and  not  by  inference 
only.  Where  therefore  an  attachment  of  the  nature  last  alluded 
to  had  been  issued  against  a  non-resident  defendant,  and  the 
plaintiffs,  though  described  in  the  petition,  as  "  of  the  City  of 
New  York,"  were  not  affirmatively  alleged  in  the  petition  itself, 
or  by  affidavit,  to  be  residents,  it  was  held  that  jurisdiction 
was  not  conferred,  and  that  the  proceedings  were  void.  Payne 
v.  Young,  Court  of  Appeals,  12th  April,  1853. 

The  sufficiency  of  the  affidavits  on  which  an  attachment  is 
issued  under  the  Code  is  not,  however,  a  jurisdictional  question, 


284  ATTACHMENT. 

so  as  to  enable  its  regularity  to  be  impeached  in  a  collateral 
proceeding.  In  Re  Griswold,  13  Barb.  412.  See  also  Morgan 
v.  Avery,  above  cited  and  there  referred  to.  See,  likewise, 
Burkhardt  v.  Sanford,  Mills  v.  Gorbett,  and  Thompson  v.  Dicker- 
son,  noticed  in  the  previous  section. 

In  St.  Amant  v.  De  Beixcedon,  3  Sandf.  703,  1  C.  R.  (N.  S.) 
104,  the  general  requisites  of  the  affidavit  on  which  an  attach- 
ment may  be  obtained,  are  thus  stated  by  the  general  term  of 
the  Superior  Court:  "We  consider  it  proper,  in  a  remedy  of 
so  grave  a  character  as  this ;  the  attachment,  in  effect,  tying  up 
the  entire  property  of  a  party  pending  a  suit ;  that  the  affidavit 
upon  which  the  proceeding  is  authorized,  should  be  explicit, 
and  made  in  general  upon  positive  knowledge  of  the  deponents, 
so  far  as  to  establish  a,  prima  facie  case.  In  general,  there  is  no 
difficulty  in  obtaining  the  affidavits  of  the  persons  who  give 
the  information  on  which  the  plaintiff  desires  to  proceed ;  and, 
when  such  affidavits  cannot  be  obtained,  from  the  peculiar  cir- 
cumstances of  the  case,  those  circumstances  must  be  stated,  with 
all  the  grounds  of  suspicion,  so  as  to  satisfy  the  judge  that  the 
facts  exist  on  which  the  attachment  is  sought,  and  that  the 
plaintiff  has  produced  the  best  evidence  in  his  power  to  establish 
them." 

In  Camman  v.  Tompkins,  1  C.  R.  (N.  S.)  12,  and  Gilbert  v. 
Tompkins,  1  C.  R  (N.  S.)  16,  the  same  principle  is  thus  laid 
down:  that  "The  grounds  of  the  belief  of  the  party  must  be 
set  out,  so  that  the  judge  who  issues  the  warrant  may  have 
such  belief,  and  the  court  may  be  able  to  determine  whether  it 
be  well  grounded." 

If,  too,  sufficient  facts  are  stated,  an  erroneous  inference 
drawn  from  them,  as  to  the  precise  complexion  of  those  facts, 
will  not  vitiate  the  proceeding.  Gilbert  v.  Tompkins,  above 
noticed.  See  this  subject  fully  considered,  and  various  cases 
cited,  (establishing  the  same  principles  as  to  the  statements  on 
which  the  belief  of  the  party  must  be  based,  in  order  to  an 
affidavit  of  that  nature  being  receivable,)  in  the  previous 
chapters  of  this  portion  of  the  work,  under  the  analogous 
headfl  of  Arrest  and  Injunction. 

§  99.    Security  o?i  Application, 

The  plaintiff  must  also  be  prepared  with  security  at  the  time 
of  such  application,  under  Bee.  230,  as  under: 


ATTACHMENT.  285 

§  230.  Before  issuing  the  warrant,  the  judge  shall  require  a  writ- 
ten undertaking  on  the  part  of  the  plaintiff,  with  sufficient  surety,  to 
the  effect,  that,  if  the  defendant  recover  judgment,  the  plaintiff  will 
pa)'  all  costs  that  may  be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the 
sum  specified  in  the  undertaking,  which  shall  be  at  least  two  hundred 
and  fifty  dollars. 

The  form  of  this  undertaking  will  be  found  in  the  Appendix. 
It  will  be  good,  even  if  made  in  the  form  of  a  penal  bond,  pro- 
vided it  contain  the  conditions  here  required,  and  be  otherwise 
regular;  and  any  mere  formal  defects  will  be  cured  by  amend- 
ment.    Conklin  v.  Butcher,  5  How.  386,  1  C.  K.  (N.  S.)  49. 


§  100.    Warrant  of  Attachment. 

The  affidavits  and  security  being  prepared,  application  should 
be  made  to  a  judge,  or  county  judge,  as  above  prescribed,  for  a 
warrant  of  attachment.  The  form  of  this  document  is  pre- 
scribed by  sec.  231,  as  follows: 

§  2S1.  The  warrant  .shall  be  directed  to  the  sheriff  of  any  county 
in  which  property  of  such  defendant  may  be,  and  shall  require  him  to 
attach  and  safely  keep  all  the  property  of  such  defendant  within  his 
county,  or  so  much  thereof  as  maybe  sufficient  to  satisfy  the  plaintiff's 
demand,  together  with  costs  and  expenses  ;  the  amount  of  which 
must  be  stated  in  conformity  with  the  complaint,  together  with  costs 
and  expenses.  Several  warrants  may  be  issued  at  the  same  time,  to 
the  sheriffs  of  different  counties. 

See  Appendix  for  form. 

In  Camman  v.  Tompkins,  1  C.  R  (1ST.  S.)  12,  it  was  held  that 
the  warrant  is  process  in  the  progress  of  the  cause,  and  must,  as 
such,  be  issued  in  the  ordinary  form,  and  under  the  seal  of  the 
court. 

In  Oenin  v.  Tompkins,  however,  12  Barb.  265,  this  view  was 
overruled  by  the  general  term  of  the  same  court,  in  the  same 
and  other  cases,  and  it  was  held,  that  the  signature  of  the 
judge  is  all  that  is  necessary;  that  a  formal  teste,  the  signature 
of  the  clerk,  and  the  seal  of  the  court,  are  not  requisite ;  but 
that  the  signature  of  the  plaintiff's  attorney  ought  to  be  re- 
quired. It  was  also  held,  that  no  return-day  need  be  inserted 
in  the  warrant.     If  more  than  one  warrant  is  required,  dupli- 


286  ATTACHMENT. 

cates  should  be  prepared,  and  the  judge's  signature  obtained 
thereto. 

The  warrant,  when  obtained,  must  be  lodged  with  the  sheriff 
of  the  county,  the  affidavits  on  which  it  was  issued  being  filed 
with  the  clerk  of  the  court.  It  is  important  that  the  former 
should  be  done  with  all  speed,  where  real  estate  is  sought  to  be 
seized,  the  priority  of  the  liens,  on  the  same  property,  being 
determined  by  the  order  in  which  they  are  lodged  with  the 
sheriff.     See  Learned  v.  Vandenburgh,  below  cited. 

§  101.  Sheriff's  Proceedings  on  Warrant. 

The  duties  of  the  sheriff  thereon,  are  thus  prescribed  by  sees. 
232  to  236,  inclusive : 

§  232.  The  sheriff,  to  whom  such  warrant  of  attachment  is  directed 
and  delivered,  shall  proceed  thereon,  in  all  respects,  in  the  manner 
lectured  of  him  by  law,  in  case  of  attachments  against  absent  debtors  ; 
shall  make  and  return  an  inventory,  and  shall  keep  the  property  seized 
by  him,  or  the  proceeds  of  such  as  shall  have  been  sold,  to  answer  any 
judgment  which  may  be  obtained  in  such  action  ;  and  shall,  subject  to 
the  direction  of  the  court  or  judge,  collect  and  receive  into  his  posses- 
sion, all  debts,  credits,  and  effects  of  the  defendant.  The  sheriff  may 
also  take  such  legal  proceedings,  either  in  his  own  name,  or  in  the  name 
of  such  defendant,  as  may  be  necessary  for  that  purpose,  and  discon- 
tinue the  same,  at  such  times,  and  on  such  terms,  as  the  court  or  judge 
may  direct. 

§  233.  If  any  property  so  seized  shall  be  perishable,  or  if  any  part 
of  it  be  claimed  by  any  other  person  than  such  defendant,  or  if  any  part 
of  it  consist  of  a  vessel,  or  of  any  share  or  interest  therein,  the  same 
proceedings  shall  be  had  in  all  respects,  as  are  provided  by  law  upon 
attachments  against  absent  debtors. 

§  234.  The  rights  or  shares  which  such  defendant  may  have  in  the 

stock  of   any  association,  or   corporation,  together   with    the  interest 

and  profits  thereon,  and  all  other  property,  in  this  State,  of  such  de- 

fendant,  shall   be   liable  to  be  attached  and  levied  upon,  and  sold  to 

fy  tin-  judgment  and  execution. 

i  Tin'  execution  of  the  attachment  upon  Bny  such  rights,  shares, 
or  any  debts  or  other  properly' incapable  of  manual  delivery  to  the 
sheriff,  shall  In;  made  by  leaving  a  certified  copy  of  the  warrant  of  at- 
tachment, with  the  president  or  other  head  of  the  association  or  cor- 
poration, oi-  tin:  sic,  liny,  cashier,  or  managing  agent  thereof,  or  with 
th<-  debtor  or  individual  holding  such  property,  with  a  notice  showing 
the  property  levied  on. 


ATTACHMENT.  287 

§  236.  Whenever  the  sheriff  shall,  with  a  warrant  of  attachment,  or 
execution  against  the  defendant,  apply  to  such  officer,  debtor,  or  indivi- 
dual, for  the  purpose  of  attaching  or  levying  upon  such  property,  such 
officer,  debtor,  or  individual,  shall  furnish  him  with  a  certificate,  under 
his  hand,  designating  the  number  of  rights  or  shares  of  the  defendant 
in  the  stock  of  such  association,  or  corporation,  with  any  dividend,  or 
any  incumbrance  thereon,  or  the  amount  and  description  of  the  property 
held  by  such  association,  corporation,  or  individual,  for  the  benefit  of, 
or  debt  owing  to,  the  defendant.  If  such  officer,  debtor,  or  individual 
refuse  to  do  so.  he  may  be  required  by  the  court  or  judge  to  attend 
before  him,  and  be  examined  on  oath  concerning  the  same,  and  obedience 
to  such  orders  may  be  enforced  by  attachment. 

The  statutory  provisions,  under  the  law  in  cases  of  attach- 
ment against  absent  debtors,  will  be  found  as  above,  at  2  K  S. 
1  to  16,  inclusive.  See  also  the  works  on  the  old  practice,  in 
relation  to  the  proceedings  under  these  provisions,  which  are 
essentially  the  same  as  those  under  the  Revised  Statutes,  with 
this  exception,  that  the  machinery  of  trustees,  as  thereby  pro- 
vided, is  now  swept  ajvay,  and  the  sheriff  alone  acts  in  the 
matter. 

Where  legal  proceedings  may  be  necessary,  under  the  provi- 
sions of  sec.  232,  the  same  may  be  prosecuted  by  the  plaintiff 
himself,  if  thought  advisable,  under  the  following  power,  con- 
ferred by  sec.  238 : 

§  238.  The  actions  herein  authorized  to  be  brought  by  the  sheriff, 
may  be  prosecuted  by  the  plaintiff,  or  under  his  direction,  upon  the 
delivery  by  him,  to  the  sheriff,  of  an  undertaking  executed  by  two  suf- 
ficient sureties,  to  the  effect  that  the  plaintiff  will  indemnify  the  sheriff 
from  all  damages,  costs,  and  expenses  on  account  thereof,  not  exceed- 
ing two  hundred  and  fifty  dollars  in  any  one  action.  Such  sureties 
shall,  in  all  cases,  when  required  by  the  sheriff,  justify,  by  making 
affidavit,  that  each  is  a  householder,  and  worth  double  the  amount  of 
the  penalty  of  the  bond,  over  and  above  all  demands  and  liabilities. 

The  sheriff,  having  thus  seized  upon  all  the  available  property 
of  the  defendant,  holds  it  in  deposit,  to  abide  the  event  of  the 
suit,  the  plaintiff's  lien  taking  precedence  of  any  subsequent 
process  lodged  with  him. 

If  the  sheriff,  knowing  that  the  defendant  has  sufficient  pro- 
perty to  satisfy  the  debt,  at  the  time  the  attachment  is  placed  in 
his  hands,  neglect  to  make  a  sufficient  lev}r  for  that  purpose,  he 


288  ATTACHMENT. 

will  be  liable  in  an  action  for  the  deficiency.    Ransom  v.  Halcott, 
9  How.  119. 

An  equitable  interest,  vested  in  defendants,  was  liable  to  be 
seized  under  an  attachment,  under  the  act  of  1812,  and  doubt- 
less is  so  under  the  Code ;  nor  need  a  mere  trustee  for  the  parties 
to  whom  such  equitable  interest  belongs,  be  served  with  a  copy 
of  the  attachment,  as  required  by  the  former  measure.  Wright 
v.  Douglas,  Court  of  Appeals,  12th  April,  1853,  reversing  the 
judgment  of  the  Supreme  Court  to  the  contrary  effect. 

In  Frost  v.  Willardj  9  Barb.  410,  an  attachment,  issued 
against  goods  in  the  hands  of  third  parties,  who  had  a  claim  to 
property  in  part  thereof,  and  a  lien  on  the  remainder  for  ad- 
vances, was  held  to  have  been  bad  as  against  those  parties,  and 
that  they  were  entitled  to  recover,  to  the  full  extent  of  their 
lien. 

In  Learned  v.  Vandenburgh,  7  How.  879,  the  question  as  to  the 
lien  of  attachments  is  fully  considered,  and  it  was  held,  that,  as 
under  an  execution,  a  seizure  of  personal  property,  to  be  valid, 
must  be  accompanied  by  possession  ;  but  the  mere  return  of  the 
sheriff  is  enough  to  secure  the  lien  on  the  land,  though  the  filing 
of  a  notice  of  Lis  Pendens  was  considered  as  necessary,  to  make 
that  lien  available  against  bona  fide  purchases  and  incumbrances. 
It  is  likewise  held  that,  on  the  question,  whether  or  not  property 
had  been  attached,  the  sheriff's  return  is  conclusive ;  and  also 
that,  when  several  attachments  had  been  served  on  the  same 
property,  the  priority  of  their  respective  liens  must  be  deter- 
mined by  the  order  in  which  they  were  delivered  to  the  sheriff. 
This  decision  was  affirmed  by  the  General  Term  on  appeal. 
See  Learned  v.  Vandenburgh,  8  How.  77. 

An  attachment  against  goods  owned  by  absent  debtors,  and 
shipped,  as  directed,  by  them,  but  for  which  a  bill  of  lading  had 
not  yet  been  given  to  the  shippers,  was  held  to  be  bad,  on  the 
ground  that  the  right  of  possession  had  not  yet  passed  from  the 
shipper  to  the  debtor  in  question.      Jones  v.  Bradner,  10  Barb. 

The  lien  of  a  justice's  attachment,  in  a  constable's  hands,  was 
decided  to  hold  good  against  surplus  moneys  on  the  sale  of  pro- 
perty,  under  a  prior  exection ;  and  that  such  surplus  moneys 
might  1"'  levied  on,  under  a  subsequent  execution,  under  judg- 
ment in  that  suit.     Wheeler  v.  Smith,  II  Barb.  845. 

An  attachment  against  a   non-resident  partner,  only  holds 


ATTACHMENT.  289 

good  as  regards  his  separate  interest.  Partnership  property 
cannot  be  seized  under  it,  and,  if  seized,  will  be  ordered  to  be 
restored.  Sears  v.  Gearn,  7  How.  383 ;  Stoutenburgh  v.  Van- 
denburgh,  7  How.  229 ;  Oakley  v.  Aspimvall,  4  Comst.  513  ;  10  L. 
0.  79 ;  1  Duer,  1 ;  and  Travis  v.  Tobias,  7  How.  90,  above  cited 
or  referred  to. 


§  102.  Discharge  of  Attachment  on  giving  Security. 

It  is,  however,  competent  for  the  defendant,  at  any  period 
during  the  pendency  of  the  action,  to  appear  and  apply  for  a 
discharge  of  the  attachment,  on  giving  security  to  the  plaintiff. 
The  provisions  of  the  Code,  in  this  respect,  are  contained  in  sec- 
tions 240  and  241,  which  run  as  follows : 

§  240.  Whenever  the  defendant  shall  have  appeared  in  such  action, 
he  may  apply  to  the  officer  who  issued  the  attachment,  or  to  the  court, 
for  an  order  to  discharge  the  same  ;  and,  if  the  same  be  granted,  all  the 
proceeds  of  sales  and  moneys  collected  by  him,  and  all  the  property 
attached  remaining  in  his  hands,  shall  be  delivered  or  paid  by  him  to 
the  defendant,  or  his  agent,  and  released  from  the  attachment. 

§  241.  Upon  such  an  application,  the  defendant  shall  deliver  to  the 
court  or  officer  an  undertaking,  executed  by  at  least  two  sureties,  resi- 
dent and  freeholders  in  this  State,  approved  by  such  court  or  officer,  to 
the  effect  that  the  sureties  will,  on  demand,  pay  to  the  plaintiff  the 
amount  of  the  judgment  that  may  be  recovered  against  the  defendant, 
in  the  action,  not  exceeding  the  sum  specified  in  the  undertaking,  which, 
shall  be,  at  least,  double  the  amount  claimed  by  plaintiff  in  his  comr 
plaint. 

The  application  for  this  purpose  must  be  made  on  the  usual 
notice,  and  a  copy  of  the  undertaking  should  be  served  with  the 
notice  or  order  to  show  cause. 

Where,  however,  the  attachment  has  been  obtained  upon  a 
false  statement,  it  seems  the  court  will  not  require  the  security 
here  prescribed,  on  moving  to  discharge  it.  Killian  v.  Wash- 
ington, 2  C.  K.  78.  The  attachment  had  there  been  obtained  on 
the  ground  of  non-residence,  and  the  defendant  applied  to  dis- 
charge it,  on  the  ground  that  he  was,  in  fact,  a  resident,  under 
which  circumstances,  the  court  ordered  a  reference,  under  sub- 
division 3  of  section  271,  to  ascertain  the  fact,  without  requiring, 
any  undertaking  to  be  given. 
19 


290  ATTACHMENT. 

By  giving  security  as  above  prescribed,  the  defendant  will 
necessarily  waive  any  power  he  might  otherwise  possess,  of 
moving  to  set  aside  the  plaintiff's  proceedings,  on  the  ground 
of  irregularity.  See  observations  below  on  that  subject,  and 
the  cases  of  Haggart  v.  Morgan,  and  Cole  v.  Kerr,  there  cited. 
This  point  should,  therefore,  be  looked  to,  and  the  moving  papers 
carefully  inspected,  with  that  view,  before  any  decided  step  is 
taken. 

On  Motion  for  Irregularity.'] — Though  not  specially  provided 
for  by  the  Code,  a  motion  on  this  ground  is  clearly  maintain- 
able, though  considerable  discussion  has  arisen  as  to  the  form 
of  the  motion,  and  the  nature  of  the  evidence,  which  will  be 
admitted  in  support  or  opposition  to  it. 

In  Conklin  v.  Butcher,  5  How.  886,  1  C.  K.  (N".  S.)  49,  it  was 
held  by  the  General  Term  of  the  Sixth  District,  that  additional 
affidavits  cannot  be  read  on  either  side,  on  a  motion  to  set  aside  an 
attachment.  It  cannot  be  set  aside  at  special  term,  except  for 
irregularity  ab  initio.  The  defendant. has  only  "two  modes  of 
getting  rid  of  it,  where  it  has  been  improvidently  granted:  1. 
By  applying  to  the  judge  to  vacate  his  own  order,  sec.  324.  2. 
By  appeal  to  the  General  Term,  under  sec.  349,  subdivision  1. 
But,  in  neither  mode,  can  opposing  affidavits  be  used  by  the 
defendant,  nor  can  additional  affidavits  be  used  by  the  plaintiff. 
In  this  case,  the  defendant  has  pursued  neither  of  these  modes, 
and  is  without  remedy." 

"The  Code,  in  allowing  the  process,"  says  the  learned  judge 
in  a  previous  part  of  his  decision,  "evidently  intended  it  in  the 
nature  of  bail,  and  the  defendant  can,  at  any  time  before  final 
judgment,  get  the  property  discharged,  by  giving  an  under- 
taking for  the  payment  of  any  judgment  which  may  be  reco- 
vered •  sec.  240,  241.  The  entire  omission  of  any  other  mode  of 
discharging  the  attachment,  is  quite  conclusive  that  the  legis- 
lature  did  not  intend  that  conflicting  affidavits  should  be  received 
for  that  purpose,  especially  us  the  legislature  carefully  provide 
for  the  reception  of  such  affidavits,  in  two  of  the  provisional 
remedies  in  this  sunn;  Code-;"  and  sees.  204  and  205,  relative  to 
arrest,  and  226  and  228,  to  injunction,  are  then  cited. 

The  views  above  taken  are  supported  by-Bbrm,  J.,  in  White 

v    /•).,//,.  rstonhaugh,  7  How.  357,  and  likewise  in  Bank  of  Law 

iburgh  v.  Mckie,  7  How.  300;  and  it  was  held  that  additional 


ATTACHMENT.  291 

affidavits  could  not  be  used  on  a  motion  to  vacate,  on  the  ground 
that  the  issuing  of  an  attachment  falls  within  the  definition  of 
an  order,  and,  as  such,  is  not  reviewable  on  the  merits,  by  another 
judge,  but  only  by  appeal,  or  by  application  to  the  judge  who 
issued  it  to  vacate  his  own  order. 

This  view  seems,  however,  to  be  too  restricted,  especially  as 
regards  the  review  by  appeal ;  the  point  as  to  whether  an  attach- 
ment, considered  as  an  order,  could  be  reviewed  at  all  on  the 
merits,  on  appeal,  seeming  to  be  altogether  lost  sight  of.  The 
issuing  of  an  attachment  is  a  matter  entirely  resting  in  the  dis- 
cretion of  the  court,  and,  as  such,  is  scarcely  a  proper  subject  of 
an  appeal,  except  in  cases  of  palpable  error.  The  carrying  out 
the  above  doctrine,  to  the  extent  laid  down  in  the  foregoing 
cases,  would,  in  fact,  involve  a  denial  to  a  defendant  of  all  power 
to  contradict  a  'prima  facie  case,  made  out  by  a  plaintiff,  however 
clear  the  oppression  on  him  might  be,  on  the  whole  of  the  facts, 
when  brought  out.  In  the  first  district,  the  contrary  proposition 
is  strenuously  supported.  The  first  of  the  cases  on  this  side  of 
the  question  is  Morgan  v.  Avery,  7  Barb.  656 ;  2  C.  K.  91 ; 
affirmed  on  appeal,  2  C.  R.  121 ;  and  therefore  standing,  as 
authority,  on  equal  rank  with  Conklin  v.  ..Dutcher.  The  power 
of  the  special  term  to  entertain  a  motion  testing  the  propriety 
of  issuing  an  attachment,  is  distinctly  asserted ;  and  it  is  as  dis- 
tinctly held  that,  on  such  an  application,  the  plaintiff  will  be 
allowed  to  introduce  additional  affidavits,  and  that,  not  merely 
in  answer  to  those  of  the  defendant,  but  also  in  support  of  the 
original  attachment;  this  view  being  grounded  on  the  fact,  that 
attachment  is  in  the  nature  of  process,  and  is,  as  such,  control- 
lable by  the  court  in  all  respects. 

In  Cam-man  v.  Tompkins,  and  Gilbert  v.  Tompkins,  1  C.  R. 
(N.  S.)  12  and  16,  the  same  conclusion  is  maintained,  and  it  was 
distinctly  held  that,  where  the  defendant  moves  to  discharge  the 
attachment  on  affidavits,  counter  affidavits  may  be  used  by  the 
plaintiff  to  support  his  case.  "  It  is  only  when  such  a  motion  is 
made  on  the  original  affidavits  alone,  that  the  plaintiff  is  pre- 
cluded from  strengthening  his  case  by  amendments  or  additions." 
These  cases,  and  the  principles  laid  down,  are  also  affirmed  by 
the  general  term  of  the  same  district,  in  Genin  v.  Tompkins, 
12  Barb.  265. 

In  St.  Amant  v.  Beixcedon,  3  Sandf.  703,  1  C.  R.  (N.  S.)  104, 
the  general  term  of  the  Superior  Court  fully  confirmed  the 


292  ATTACHMENT. 

authority  of  Morgan  v.  Avery  on  these  points,  and  stated,  that 
"they  entertain  no  doubt  as  to  the  right  to  introduce  supple- 
mental affidavits.  The  cases  under  the  Code  are  different  from 
those  which  have  arisen  under  the  Kevised  Statutes,  where  the 
jurisdiction  of  the  court  depended  upon  the  facts  set  out  upon 
the  affidavits  upon  which  the  warrant  was  granted."  The  weight 
of  authority  tends  therefore  decidedly  in  favor  of  this  conclu. 
sion. 

The  principle  here  laid  down  does  not  extend,  however,  to  a 
case  in  which,  on  the  original  affidavits,  the  attachment  was 
void  for  want  of  jurisdiction.  Under  these  circumstances,  the 
plaintiff  cannot  be  allowed  to  introduce  evidence  in  reply  to 
the  defendant's  affidavits,  on  a  motion  to  vacate,  in  order  to 
make  out  a  new  case,  showing  that  sufficient  grounds  existed  at 
the  time  of  the  issuing,  but  which  did  not  appear  on  the  original 
papers.     Granger  v.  Schwartz,  11  L.  0.  31-6. 

As  regards  the  defendant's  power  to  move,  on  affidavits  dis- 
proving the  plaintiff's  original  statement,  the  same  case  is  another 
decided  authority  in  favor  of  the  views  last  considered.  Killian 
v.  Washington,  2  C.  R.  78,  before  noticed,  is  also  a  decision  to  the 
same  effect.  In  that  case,  and  also  in  Granger  v.  Schwartz,  evi- 
dence of  residence  was  admitted,  in  order  to  vacate  an  attachment 
issued  on  the  ground  of  non-residence. 

Various  cases,  in  which  attachments  have  been  vacated  on 
different  special  grounds,  will  be  found  cited  in  the  previous 
portions  of  the  present  chapter,  as  Travis  v.  Tobias,  Stoutenburgh 
V.  Vandenburgh,  Sears  v.  Gearn,  and  Oakley  v.  Aspimvall,  in 
relation  to  resident  joint  debtors;  The  Western  Bank  v. 
The  City  Bank  of  Columbus,  and  Eggleston  v.  Orange  and  Alex- 
andria ttullroad  Company,  as  to  non-resident  corporations; 
Granger  v.  Schwartz,  Fisher  v.  Curtis,  Perry  v.  Montgomery, 
Cole  v.  Kerr,  and  Payne  v.  Young,  as  to  attachments  in  courts 
of  limited  jurisdiction;  Gastellanos  v.  Jones,  Staples  v.Fairchild, 
Payne  v.  )'""/'.'/,  ami  'Jones  v.  Bradner,  as  to  attachments,  void 
for  insufficiency  of  original  allegations. 

An  attachment  cannot  be  impeached  in  a  collateral  proceed- 
ing. See  Burkhardi  v.  Sanford,  Mills  v.  Corbtlt,  Thompson  v. 
JKckerson,  In  Bt   Griawold,  and  Morgan  v.  Avery,  above  noticed. 

A  fatal  objection  t<>  the  original  issuing  of  an  attachment  will 
POt  be  eure'l  by  an  appearance  "ii  the  part  of  the  defendant.  It 
will  still  be  competent  for  him  to  appearand  move  to  vacate  on 


ATTACHMENT.  293 

a  proper  case  shown.  See  Granger  v.  Schwartz,  11  L.  O.  846, 
above  cited.  As  regards  general  jurisdiction  in  the  suit,  however, 
an  appearance,  as  after  noticed  under  that  head,  will  be  a  com- 
plete waiver.  See  Watson  v.  Cabot  Bank,  5  Sandf.  423,  and 
other  cases  there  cited. 

The  giving  of  security,  as  provided  by  sees.  240  and  241, 
above  cited,  will,  on  the  contrary,  be  a  complete  bar  to  any 
subsequent  motion  on  the  ground  of  irregularity.  See  Haggart 
v.  Morgan,  4  Sandf.  198,  1  Seld.  422  ;  Cole  v.  Kerr,  2  Sandf.  661. 
See,  also,  various  cases  to  the  same  effect  cited  on  the  analogous 
subject  of  Arrest  and  Bail,  in  the  first  chapter  of  the  present 
book. 

Result  of  Application^ — In  case  such  an  application  be  made 
and  granted,  the  defendant  becomes,  of  course,  entitled  to  the 
return  of  the  property,  on  the  order  discharging  the  attach- 
ment being  entered,  and  served  upon  the  sheriff  in  the  usual 
manner.  If  the  application  fail,  or  if  none  be  made,  the  case 
then  comes  on  for  trial  in  the  usual  course. 


§  103.  Effect  of  Judgment,  if  in  favor  of  Defendant. 

If  the  plaintiff  fail  in  the  action,  and  the  defendant  recover 
judgment  against  him,  the  course  to  be  pursued  by  the  latter  is 
thus  pointed  out  by  sec.  239  : 

§  239.  If  the  foreign  corporation,  or  absent,  or  absconding,  or  con- 
cealed defendant,  recover  judgment  against  the  plaintiff  in  such  action, 
any  bond  taken  by  the  sheriff,  except  such  as  are  mentioned  in  the  last 
section,  all  the  proceeds  of  sales  and  mone}rs  collected  by  him,  and  all 
the  property  attached  remaining  in  his  hands,  shall  be  delivered  by  him 
to  the  defendant  or  his  agent  on  request,  and  the  warrant  shall  be  dis- 
charged, and  the  property  released  therefrom. 

The  defendant  may,  too,  under  these  circumstances,  be  enti- 
tled to  prosecute  a  claim  for  damages  against  the  plaintiff,  and 
his  sureties,  under  the  undertaking  prescribed  in  sec.  230,  by 
action  on  such  undertaking  in  the  usual  manner. 

If  in  favor  of  Plaintiff.'] — If,  on  the  contrary,  judgment  be 
recovered  by  the  plaintiff,  the  sheriff's  course  thereupon  is  thus 
prescribed  by  sec.  237 : 


294  ATTACHMENT. 

§  237.  In  case  judgment  be  entered  for  the  plaintiff  in  such  action, 
the  sheriff  shall  satisfy  the  same  out  of  the  property  attached  by  him, 
if  it  shall  be  sufficient  for  that  purpose. 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all  sales  of  per- 
ishable property,  and  of  any  vessel,  or  share  or  interest  in  any  vessel 
sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much 
as  shall  be  necessary  to  satisfy  such  judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been 
issued  on  such  judgment,  he  shall  proceed  to  sell  under  such  execution, 
so  much  of  the  attached  property,  real  or  personal,  except  as  provided 
in  subdivision  four  of  this  section,  as  may  be  necessary  to  satisfy  the 
balance,  if  enough  for  that  purpose  shall  remain  in  his  hands  ;  and  in 
case  of  the  sale  of  any  rights  or  shares  in  the  stock  of  a  corporate  asso- 
ciation, the  sheriff  shall  execute  to  the  purchaser  a  certificate  of  sale 
thereof,  and  the  purchaser  shall  thereupon  have  all  the  rights  and  pri- 
vileges in  respect  thereto,  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant  shall 
have  passed  out  of  the  hands  of  the  sheriff  without  having  been  sold  or 
converted  into  money,  such  sheriff  shall  re-possess  himself  of  the  same, 
and,  for  that  purpose,  shall  have  all  the  authority  which  he  had  to  seize 
the  same  under  the  attachment ;  and  any  person  who  shall  wilfully  con- 
ceal or  withhold  such  property  from  the  sheriff,  shall  be  liable  to  double 
damages  at  the  suit  of  the  party  injured. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the  sheriff 
may  proceed  to  collect  the  notes,  and  other  evidences  of  debt,  and  the 
debts  that  may  have  been  seized  or  attached  under  the  warrant  of  attach- 
ment, and  to  prosecute  any  bond  he  may  have  taken  in  the  course  of 
such  proceedings,  and  apply  the  proceeds  thereof  to  the  payment  of 
the  judgment. 

When  the  judgment  and  all  costs  of  the  proceeding  shall  have  been 
paid,  the  sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the  de- 
fendant, the  residue  of  the  attached  property  or  the  proceeds  thereof. 

For  the  purpose  of  authorizing  the  sheriff  to  proceed  as 
above,  an  execution  should  be  lodged  in  his  hands  in  the  usual 
manner. 

It.  was  considered  in  Keyser  v.  Waterbwry,  3  C.  R  233,  that, 
as  BOOD  as  an  execution  is  so  lodged,  the  attachment  is  virtually 
at  an  end;  but  this  seems  clearly  inconsistent  with  the  special 
directions  in  sec  2:}7. 

In  Hanson  v.  Triple^  8  Sandf.  7:;:;,  1  0.  R.  (N.  S.)  154,  it  was 
held  that  an  attachment,  and  supplementary  proceedings  on 
execution,  might  be  carried  on  at  the  same  time,  in  the  same 


ATTACHMENT.  295 

case,  subject  to  the  questions  as  to  the  relative  rights  of  the  par- 
ties, being  settled  in  an  action  by  a  receiver  under  those  pro- 
ceedings, in  the  event  of  a  conflict  arising. 

Question  as  to  Rights  of  other  Creditors.'] — In  Fraser  v.  Green- 
hill,  3  C.  E.  172,  the  powers  of  the  court  on  the  above  subject 
are  stretched  to  their  utmost  limit,  it  being  held  that,  where  an 
attachment  has  been  issued,  any  other  creditor  of  the  same 
party  may  come  in,  and  seek  to  be  made  co-defendant  in  the 
suit.  "  A  complete  determination  of  the  controversy,  with 
respect  to  the  fund  which  is  in  court  by  virtue  of  the  attach- 
ment, cannot,"  said  the  learned  judge,  "be  had  without  the 
presence  of  the  subsequent  creditors,  and  those  creditors  claim 
and  have  an  interest  in  the  whole  controversy,  involved  in  the 
suit  brought  by  the  prior  creditors,"  on  which  grounds  he 
granted  the  order,  under  sec.  122. 

This  decision  really  seems  to  amount  to  a  practical  repeal  of 
the  peculiar  provisions  of  the  Code,  under  which  this  proceed- 
ing is  one  for  the  exclusive  benefit  of  the  attaching  creditor ; 
and  to  a  complete  practical  restoration  of  the  machinery  of  the 
proceeding  under  the  Eevised  Statutes,  which  was  one  for  the 
benefit  of  creditors  in  general. 

The  law,  as  thus  laid  down,  seems  also  open  to  most  serious 
objection,  on  the  following  grounds: 

The  claims  of  subsequent  creditors,  are  totally  beside  the 
controversy  between  the  parties  before  the  court.  Any  ques- 
tion on  that  subject  is  purely  incidental,  and  has  nothing  to  do 
with  the  rights,  either  of  the  plaintiff,  or  the  defendant,  as  be- 
tween themselves.  That  controversy  can  be  determined  with- 
out bringing  other  parties  in,  and  surely  it  seems  a  great  hard- 
ship on  a  plaintiff  to  encumber  his  suit  with  unnecessary  par- 
ties, either  seeking  to  raise  collateral  issues,  manifestly  prejudi- 
cial to  the  rights  he  has  obtained,  by  his  superior  diligence ;  or 
fighting  about  a  surplus,  to  which  no  one  can  have  any  claim 
whatever,  until  he  have  been  first  paid  his  debt  and  costs  in 
full.  To  leave  the  subsequent  creditors  to  their  remedy  as 
against  the  sheriff,  and  to  the  independent  assertion  of  their 
rights  as  between  each  other,  seems  far  more  consonant  to  sound 
principles  and  sound  practice ;  and  a  proceeding  in  the  nature 
of  interpleader,  would  afford  at  once,  indemnity  to  the  sheriff, 
and  satisfaction  to  the  parties,  without  encumbering  the  case  of 


296  ATTACHMENT. 

the  original  suitor  with  controversies  with  which  he  has  no  con- 
cern, and  difficulties,  from  which  his  superior  diligence  ought 
property  to  have  afforded  him  protection,  and  was  evidently 
meant  to  do  so  by  the  legislature.  See  general  principles,  as  to 
a  plaintiff's  right  to  proceed,  without  impediment  by  reason  of 
discussions  between  co-defendants,  as  laid  down  in  Woodworth  v. 
Bellows,  4  How.  24,  1  C.  E.  129. 

The  above  views  are  confirmed  by  the  case  of  Juddv. Young, 
7  How.  79,  where  it  was  held  that,  in  an  action  on  contract,  ex- 
press or  implied,  for  the  recovery  of  money,  a  person  interested, 
cannot  claim  to  be  brought  in  as  a  party ;  and  such  claim  was 
there  refused,  on  behalf  of  parties  claiming  an  interest  in  a  sur- 
plus in  the  hands  of  the  defendant.  Sec.  122  must,  it  was  there 
held,  be  confined  to  actions  for  the  recovery  of  real  or  of  speci- 
fic personal  property. 

The  recent  case  of  In  Re  Coates,  13  Barb.  452,  is  important, 
with  reference  to  the  ris-hts  of  non-resident  creditors  to  share 

O 

in  the  proceeds  of  an  attachment  issued  under  the  Eevised  Sta- 
tutes, and  the  adjustment  of  the  dividend  under  these  circum- 
stances, though,  as  belonging  to  the  old  practice,  it  does  not 
properly  come  within  the  scope  of  the  present  chapter. 

Sheriff"' 's  Return,  and  Fees.'] — The  return  to  be  made  by  the 
sheriff,  and  the  fees  to  which  he  is  entitled,  are  thus  provided 
for  by  sections  242  and  243 : 

§  242.  When  the  warrant  shall  be  fully  executed  or  discharged,  the 
sheriff  shall  return  the  same,  with  his  proceedings  thereon,  to  the  court 
in  which  the  action  was  brought. 

§  243.  The  sheriff  shall  be  entitled  to  the  same  fees  and  compensa- 
tion for  services,  and  the  same  disbursements,  under  this  title,  as  are 
allowed  by  law  for  like  services  and  disbursements,  under  the  provisions 
of  chapter  five,  title  one,  part  two,  of  the  Revised  Statutes. 


RECEIVER,  <fcc  297 


CHAPTER  V. 


APPOINTMENT   OF   RECEIVER,   AND   OTHER   PROVISIONAL 
REMEDIES. 


§  104.    Statutory  Provisions. 

In  the  Codes  of  1848  and  1849,  the  subject  of  minor  pro- 
visional remedies  was  left  unprovided  for,  except  by  a  general 
reservation  of  the  existing  powers  of  the  court.  On  the  amend- 
ment of  1851,  however,  these  matters,  and  the  subject  of  re- 
ceiverships in  particular,  were  made  matter  of  special  provision 
by  sec.  244,  and  that  section  has  since  been  further  altered  on 
the  recent  revision,  and  now  reads  as  follows : 

§  244.  A  receiver  may  be  appointed : 

1.  Before  judgment,  on  the  application  of  either  party,  when  he 
establishes  an  apparent  right  to  property,  which  is  the  subject  of  the 
action,  and  which  is  in  the  possession  of  an  adverse  party;  and  the 
property,  or  its  rents  and  profits,  are  in  danger  of  being  lost,  or  ma- 
terially injured  or  impaired. 

2.  After  judgment,  to  carry  the  judgment  into  effect. 

3.  After  judgment,  to  dispose  of  the  property,  according  to  the 
judgment,  or  to  preserve  it  during  the  pendency  of  an  appeal ;  or  when 
an  execution  has  been  returned  unsatisfied,  and  the  judgment  debtor 
refuses  to  apply  his  property  in  satisfaction  of  the  judgment. 

4.  In  the  cases  provided  in  this  Code,  and  by  special  statutes,  when 
a  corporation  has  heen  dissolved,  or  is  insolvent,  or  in  imminent  danger 
of  insolvency,  or  has  forfeited  its  corporate  rights. 

5.  In  such  other  cases  as  are  now  provided  by  law,  or  may  be  in  ac- 
cordance with  the  existing  practice,  except  as  otherwise  provided  in 
this  act. 

When  it  is  admitted  by  the  pleading  or  examination  of  a  party,  that 
he  has  in  his  possession,  or  under  his  control,  any  money  or  other  thing 
capable  of  delivery,  which,  being  the  subject  of  the  litigation,  is  held  by 
him  as  trustee  for  another  party,  or  which  belongs  or  is  due  to  another 
party,  the  court  may  order  the  same  to  be  deposited  in  court,  or  de- 
livered to  such  party,  with  or  without  security,  subject  to  the  further 
direction  of  the  court. 


298  RECEIVER,  &c. 

Whenever,  in  the  exercise  of  its  authority,  a  court  shall  have  ordered 
the  deposit,  delivery,  or  conveyance  of  money  or  other  property,  and 
the  order  is  disobeyed  ;  the  court,  besides  punishing  the  disobedience 
as  for  contempt,  may  make  an  order,  requiring  the  sheriff  to  take  the 
money  or  property,  and  deposit,  deliver,  or  convey  it,  in  conformity 
with  the  direction  of  the  court. 

When  the  answer  of  the  defendant  admits  part  of  the  plaintiff's  claim 
to  be  just,  the  court,  on  motion,  may  order  such  defendant  to  satisfy 
that  part  of  the  claim ;  and  may  enforce  the  order,  as  it  enforces  a  pro- 
visional remedy. 

§  105.    Receivers. 

The  practice  in  respect  to  the  appointment  and  duties  of 
receivers  is,  as  will  be  seen,  rather  defined  than  altered  by  these 
provisions,  and  remains  substantially  the  same  as  before.  The 
elementary  and  other  works  upon  that  subject,  and  in  particu- 
lar, the  treatise  of  Mr.  Edwards,  should,  accordingly,  be  care- 
fully consulted ;  and  the  following  observations  will  be  con- 
fined simply  to  a  short  citation  and  consideration  of  the 
decisions  which  have  taken  place  under  the  Code,  in  relation 
to  this  remedy,  in  the  order  pointed  out  by  the  section  itself, 
as  now  amended. 

The  first  subdivision  of  that  section  is,  in  fact,  the  principal 
point  to  be  looked  into,  in  the  present  connection,  bearing,  as 
it  does,  more  peculiarly  the  stamp  of  a  provisional  remedy. 
Subdivisions  2  and  3,  are,  on  the  contrary,  more  properly  pro- 
visions consequent  on  a  judgment  or  decree,  and,  as  such,  will 
be  hereafter  considered. 

An  application  for  a  receiver,  in  general,  unless  forming  part 
of  the  judgment  in  the  cause,  must,  in  all  cases,  be  grounded 
on  the  usual  notice  to  the  adverse  party;  (see  Kemp  v.  Harding, 
4  How.  178,  and  Dorr  v.  Noxon,  5  IIow.  29,)  and  must  be 
brought  on  as  a  motion,  on  affidavits  in  the  usual  manner.  A 
form  of  notice  of  motion  will  be  found  in  the  Appendix.  The 
affidavits  on  which  it  is  grounded,  must  state  the  facts  of  the 
Case,  and  must  clearly  bring  it  within  the  terms  of  the  section 
as  above  cited.  A  prima  fade  right  to  the  property  claimed, 
and  a  reasonable  apprehension  of  its  being  lost  or  injured, 
must,  iii  all  cases,  be  fully  established,  or  the  application  will 
not  be  granted.  Sec  Goodyear  v.  Beits,  7  How.  187,  Austin  v. 
Chapma/ni  1  I  L,  0.  LOS.    The  motion  may,  as  has  been  seen,  be 


RECEIVER,  <tc.  299 

made  at  any  time  before  judgment,  and  by  either  party ;  bury 
of  course,  it  cannot  be  made  until  after  tlie  action  lias  been 
duly  commenced  by  service  of  process.  If  immediate  injury 
be  apprehended,  an  injunction  may  be  applied  for  collaterally, 
and  on  the  same  papers ;  and,  if  the  risk  be  imminent,  the  ap- 
plication may  be  shaped  in  the  form  of  an  order  to  show  cause, 
with  an  interim  injunction,  until  it  is  brought  on  and  disposed 
of  in  due  course. 

Security  must  be  given  by  the  receiver  when  appointed,  as 
under  the  former  practice. 

Where  the  application  for  a  receiver  forms  part  of  the  relief 
originally  contemplated  at  the  outset  of  the  suit,  it  should  be 
formally  prayed  for  in  the  complaint,  and  the  subsequent  ap- 
plication must  be  grounded  upon  that  prayer.  Where,  how- 
ever, two  parties  have  an  equal  interest  in  the  same  fund,  and 
an  injunction  has  been  granted  on  the  application  of  one,  a 
motion  for  an  injunction  and  receiver,  will  be  so  on  the  part  of 
the  other,  almost  as  of  course,  although  a  prayer  to  that  effect 
may  have  been  omitted  in  the  complaint.  McCracken  v.  Ware, 
3  Sandf.  688,  1  C.  E.  (N.  S.)  215. 

A  prima  facie  case  for  the  granting  of  this  remedy  being 
shown  as  above,  the  merits  of  the  action  will  not  otherwise  be 
inquired  into ;  the  proceeding  being  merely  for  the  preservation 
of  the  property  in  controversy,  and  not  for  any  adjudication  as 
to  the  ultimate  rights  of  the  parties.  /Sheldon  v.  Weeks,  2  Barb. 
532  ;  1  C.  E.  87 ;  Conro  v.  Gray,  4  How.  166.  See,  also,  Todd 
v.  Crooke,  1  C.  E,  (K  S.)  32-1,  below  cited. 

A  motion  for  a  receiver  will  not  be  granted,  to  restrain  the 
due  use  of  joint  property,  where  no  abuse  can  reasonably  be 
apprehended,  and  where  full  security  has  been  given,  for  the 
due  accounting  for  mesne  profits.  Dunham  v.  Jarvis,  8 
Barb.  88. 

Where,  however,  there  is  any  doubt  as  to  the  safety  of  the 
fund,  the  application  will  be  granted,  almost  as  of  course. 

Where,  too,  a  partnership  had  been  dissolved  in  order  to  a 
new  arrangement,  the  terms  of  which  remained  uncertain  at 
the  time  of  the  institution  of  the  suit,  a  receiver  was  granted. 
Smith  v.  Danvers,  5  Sandf.  669. 

In  Dillon  v.  Horn,  5  How.  35,  an  injunction  and  receiver 
were  granted,  at  the  suit  of  a  general  creditor  of  insolvent 
general  partners,  on  complaint  and  answer,  the  debt  not  being 
denied. 


300  .  RECEIVER,  <fcc. 

In  the  case  of  an  expired  special  partnership,  a  receiver  was 
appointed  in  the  usual  manner,  in  a  suit  for  an  account,  in  Hogg 
v.  Ellis,  8  How.  473. 

In  Hubbard  v.  Guild,  1  Duer,  662,  it  was  held,  that  though  a 
solvent  partner  is  not  entitled,  as  of  right,  to  the  administration 
of  the  partnership  assets,  on  a  dissolution  in  consequence  of 
the  separate  insolvency  of  others ;  a  preference  will  be  given 
to  him  as  receiver,  when  his  capacity  and  integrity  are  un- 
questioned. 

In  Cary  v.  Williams,  1  Duer,  667,  it  was  held,  that  a  suit  for 
an  injunction  and  receiver  was  the  proper  course  to  pursue, 
where  one  partner  sought  redress  for  the  fraudulent  removal  of 
goods  by  another ;  and  that  an  ordinary  action,  with  a  view  to 
the  arrest  of  the  latter,  could  not  be  maintained. 

In  a  suit  against  trustees,  to  set  aside  an  assignment  on  the 
ground  of  fraud,  a  receiver  was  appointed,  though  the  defend- 
ant denied  the  fraud,  the  facts  which  warranted  such  an  infer- 
ence not  being  controverted.  Churchill  v.  Bennett,  8  How.  309. 
So,  where  the  defence  was  a  doubtful  one,  a  similar  appoint- 
ment was  made.    Quick  v.  Grant,  10  L.  0.  344. 

A  receiver  will  not,  however,  be  appointed  in  a  case  where 
the  plaintiff's  title  to  relief  is  disputed,  and  no  danger  shown. 
Austin  v.  Chapman,  11  L.  O.  103.  See,  also,  Goodyear  v.  Beits, 
7  How.  187. 

The  granting  of  receiverships,  under  subdivisions  2  and  3, 
will  be  hereafter  fully  considered  under  the  heads  of  Judgment, 
and  Proceedings  supplementary  to  Execution,  and  particularly 
the  latter.  See  that  chapter,  and  the  cases  of  Kemp  v.  Harding, 
4  How.  178;  Corning  v.  Tooker,  5  How.  16;  Dorr  v.  Noxon,  5 
How.  29;  Porter  v.  Williams,  5  How.  441,  9  L.  0.  307;  1  C.  K. 
(N.  S.)  144;  Court  of  Appeals,  31st  Dec,  1853;  The  People  v. 
Hulbwrt,  5  How.  446;  McCrackanv.  Ware,  3  Sandf.  688,  1  C. 
B.  (N.  S.)  215;  Todd  v.  Crooke,  1  C.  11.  (N.  S.)324;  Gouverneur 
v.  Warner,  2  Sandf.  624;  The  People  v.  King,  9  How.  97;  Van 
luii  ,!■!,,■  \.  Emmy,  9  I  low.  Ki.*>;  Vandcrpool  v.  Van  Valken- 
burgh,  2  Seld.  L90;  The  Chautauque  County  Hank  v.  White,  2 
Seld.  236,  and  other  decisions  there  cited. 

The  statute  law  on  the  subject  of  receiverships  of  the  pro- 
perty of  insolvent  or  dissolved  corporations,  will  be  found  in 
articles  II-  and  III.  of  title  IV.,  chap.  VII.,  part  III.  of  the 
Revised  Statutes,  2  EL  S.  466  to  472.     See,  also,  chap.  II.,  title 


RECEIVER,  <tc.  301 

XIII.  of  the  Code,  part  II.,  and  in  particular,  sec.  444  of  that 
chapter. 

In  Conro  v.  Gray,  4  How.  166,  a  long  discussion  will  be  found, 
as  to  the  circumstances  under  which  a  receiver  will  be  ap- 
pointed in  these  cases,  and  various  cases  under  the  old  practice 
are  cited.  The  receiver  of  an  insolvent  Mutual  Insurance 
Company  is  entitled  to  charge  commission  on  the  value  of  de- 
posit or  premium  notes,  come  to  his  hands,  and  surrendered  to 
the  makers  under  order  of  the  court.  Van  Buren  v.  Chenango 
County  Mutual  Insurance  Company,  12  Barb.  671.  The  duties 
of  such  a  receiver  are  fully  discussed  in  Bangs  v.  Gray,  15 
Barb.  264. 

A  receiver  of  such  a  corporation  cannot  impeach  or  disaffirm 
its  lawful  or  authorized  acts.  "For  most,  if  not  all  purposes, 
he  takes  the  place,  and  stands  as  the  representative  of  the  com- 
pany. He  is  as  much  bound  by  a  settlement  which  the  com- 
pany were  authorized  to  make,  as  the  company  itself."  Hyde  v. 
Lynde,  4  Oomst.  387.  He  cannot  impeach  or  disaffirm  the 
lawful  and  authorized  acts  of  the  corporation,  or  of  its  presi- 
dent, acting  within  the  limits  of  his  authority.  Brouer  v. 
Harbeck,  1  Duer,  114. 

The  works  as  to  the  former  practice,  may  be  consulted  as  to 
the  different  cases  saved  by  subdivision  5. 

The  duties  of  receivers  in  general  remain  as  under  the  late 
practice;  those  of  receivers  under  proceedings  supplementary 
to  execution,  are  prescribed  by  Eule  77  of  the  Supreme  Court, 
and  will  be  hereafter  considered. 

In  Porter  v.  Williams,  5  How.  441,  9  L.  O.  307,  1  C.  R  (N.  S.) 
144,  affirmed  b}r  Court  of  Appeals,  31st  Dec,  1853,  although 
the  case  is  one  of  receivership  in  proceedings  supplementary  to 
execution,  the  doctrine  is  laid  down,  in  general  terms,  that, 
when  a  receiver  has  been  duly  appointed,  he  becomes,  by  virtue 
of  his  office,  legally  entitled  to  the  possession  of  the  debtor's 
estate,  and  that,  though  usual,  no  assignment  was  necessary  to 
divest  the  latter's  title  to  personal  propert}^  and  to  vest  that 
property  in  him.  He  also  becomes  thereupon  entitled  to  the 
rents  and  income  of  the  debtor's  real  estate,  but  the  title  to  such 
estate  itself  can  only  be  divested  by  sale  on  execution.  The 
same  doctrine  is  also  laid  down  in  The  People  ex  rel.  Williams 
v.  Hulburt,  5  How.  446. 

In  Butter  v.  Tallis,  5  Sandf.  610,  it  was  further  held,  that  the 


302  RECEIVER,  Ac. 

title  of  a  receiver  exists,  by  relation,  from  the  date  of  the  order 
directing  his  appointment,  in  the  same  manner  as  if  that  order, 
instead  of  directing  a  reference,  had  named  the  receiver. 

Where,  too,  a  judgment  debtor  was  in  contempt  for  not 
making  an  assignment  of  his  property,  as  ordered,  it  was  held 
that  an  order  for  the  sequestration  of  his  property  was  no 
longer  necessary  under  the  Code;  that  the  receiver's  title  be- 
came perfect,  when  he  had  given  the  requisite  security,  and  then 
operated,  by  relation  to  the  time  when  the  order  was  made ; 
and  that  such  order  was  per  se  a  sequestration,  and  gave  the 
receiver  all  necessary  means  of  enforcing  his  rights.  West  v. 
Fraser,  5  Sandf.  653. 

In  the  case  In  Be  Paddock,  6  How.  215,  it  was  held  that, 
although  the  court  may  remove  trustees  or  receivers  for  insol- 
vency, it  is  not  absolutely  bound  to  do  so ;  and,  in  that  case, 
an  application  for  such  purpose  was  refused,  the  fund  not  ap- 
pearing to  be  in  danger,  and  the  insolvency  of  the  receiver 
having  been  known  to  the  parties,  before  his  appointment. 

In  Bennett  v.  Ckapin,  3  Sandf.  673,  the  following  principles 
are  laid  down,  in  reference  to  the  duties  and  powers  of  a  re- 
ceiver, when  appointed : 

1.  He  cannot  make  rests  in  his  accounts,  with  a  view  to  his 
commission,  which  must  be  calculated  on  the  aggregate  of  his 
receipts  and  payments. 

2.  In  cases  where  the  fund  is  for  the  joint  benefit  of  parties, 
without  the  existence  of  adverse  interests  between  them,  he 
may  employ  the  counsel  of  one  of  such  parties ;  but  not,  if  the 
reverse  be  the  case. 

3.  He  is  entitled  to  charge  commission  on  choses  in  action 
actually  in  his  hands,  and  delivered  over  by  him  to  the  parties, 
before  realization,  on  a  final  settlement  of  his  accounts.  See 
also  as  to  assets,  delivered  up  by  order  of  the  court,  on  winding 
ii|>  the  affairs  of  an  insolvent  company,  Van  Buren  v.  Chenango 
County  \futual  Insurance  Company,  L2  Barb.  671,  above  cited. 

In  relation  to  the  sale  of  peal  property  by  a  receiver  in  a 
creditors' suit,  see  The  Chautaiique  County  Hunk  v.  White,'!  Seld, 

A  person,  standing  in  this  position  cannot  purchase  and 
hold  property,  comprised  in  his  receivership,  to  his  own  use;  a 
purchase  by  him,  if  made,  will  enure  to  the  benefit  of  those  for 
whom  In-  acts,  at  their  election.   Jieweti  v.  Miller,  Court  of  Ap- 

80th  Dee.,  1852. 


RECEIVER,  Ac.  303 

Before  bringing  or  defending  an  action  on  behalf  of  the 
estate,  a  receiver  must  apply  to  and  obtain  the  consent  of  the 
court ;  and,  if  he  fail  to  do  so,  he  will  be  personally  liable  for 
the  costs.     Phelps  v.  Cole,  3  C.  E.  157. 

In  Gouverneur  Y.Warner,. 2  Sandf.  624,  it  was  decided  that  a 
plaintiff  in  a  creditor's  suit,  who  had  obtained  a  receiver  over 
the  defendant's  property,  could  not  afterwards  levy  an  alias 
execution,  on  personal  property  covered  by  such  receivership. 


§  106.   Other  Remedies. 

By  this  section,  as  it  stood  in  the  Code  of  1851,  all  other 
provisional  remedies  then  existent,  were  saved.  In  relation  to 
those  remedies,  see  the  works  on  the  old  practice.  The  ques- 
tions as  to  the  writ  of  ne  exeat  have  been  already  considered 
under  the  head  of  Arrest.  The  writ  of  supplicavit,  it  seems, 
had  not  ceased  to  exist  as  a  provisional  remedy,  under  the 
Code  of  1849.  Forrest  v.  Forrest,  5  How.  125 ;  10  Barb.  46. 
See,  likewise,  as  to  the  writ  of  ne  exeat,  Bushnell  v.  Bushnell,  7 
How.  389,  before  cited. 

How  far  the  total  omission  of  this  reservation,  from  the  sec- 
tion as  recently  amended,  may  affect  the  question  as  to  the 
future  existence  of  the  remedies  last  alluded  to ;  and  what  may 
be  the  exact  import  of  this  provision  henceforth,  remains  to  be 
settled  by  judicial  construction.  See  this  subject  heretofore 
alluded  to. 

The  remedies  provided  by  the  latter  part  of  the  section,  in 
relation  to  funds  or  property  admitted  by  a  defendant  to  be  iu 
his  possession,  and  for  the  making  and  enforcement  of  an  order 
for  their  deposit  or  delivery ;  and  likewise  those,  by  which  the 
satisfaction  of  an  admitted  portion  of  a  partially  disputed  claim 
may  be  enforced,  will  hereafter  be  considered,  and  the  cases 
cited,  under  the  head  of  Proceedings  on  the  part  of  the  Plaintiff 
after  Answer,  to  which  reference  should  be  made  accordingly. 


304  PLEADING,  ESSENTIAL  REQUISITES. 


BOOK     VI. 

OF  PLEADING,  GENERALLY  CONSIDERED. 


CHAPTER     I. 

OF  THE  ESSENTIAL  REQUISITES  OF  PLEADING. 


§   107.    Abolition  of  ancient  Forms. 

Of  all  the  radical  and  searching  changes  effected  by  the  Code, 
perhaps  the  most  so,  is  that  in  the  matter  of  pleading,  the 
whole  fabric  of  which,  in  actions  of  strictly  common  law  cogni- 
zance, has  been  swept  away  in  toto,  and  supplanted  by  a  new 
system,  borrowing  its  nomenclature,  and,  in  some  degree,  its 
general  forms,  from  the  former  equity  practice;  but  yet,  in 
many  respects,  independent  of  the  rules  by  which  that  practice 
was  governed. 

The  preamble  of  the  Code  lays  down  this  intention  on  the 
part  of  the  Legislature,  in  the  widest  terms,  as  follows  : 

"  Whereas  it  is  expedient,  tliat  the  present  forms  of  actions  and 
pleadings  in  cases  at  common  law  should  be  abolished ;  that  the  distinc- 
tion between  legal  and  equitable  remedies  should  no  longer  continue, 
and  that  an  uniform  course  of  proceeding,  in  all  cases,  should  be  estab- 
lished." 

The  immediate  controlling  agent,  by  which  this  change  is 
effected,  is  jection  69,  running  as  follows: 

8   69.    The  distinction    between   actions  at  law  and  suits    in  equity 

;ind   the  forma  of  all   Buch   actions   and   suits,  heretofore   existing,  are 

abolished  ;  and  there  shall  be  in  this  State,  hereafter,  but  one  form  of 

action,  for  the  enforcement  or  protection  of  private  rights,  and  the  re- 

of  private  wrongs  which  shall  be  denominated  a  civil  action. 


PLEADING,  ESSENTIAL  REQUISITES.  305 

By  section  140,  also,  the  following  provision  is  made,  the 
phraseology  being  rendered  still  stronger  and  more  definite,  on 
the  recent  amendments : 

§  140.  All  the  forms  of  pleading  heretofore  existing,  are  abolished ; 
and,  hereafter,  the  forms  of  pleading  in  civil  actions,  in  courts  of  record, 
and  the  rules  by  which  the  sufficiency  of  the  pleadings  are  to  be  deter- 
mined, are  those  prescribed  by  this  act. 

Although  the  adoption  of  a  general  and  uniform  system  of 
pleading,  in  all  cases,  is  a  most  desirable  object,  and  is,  above 
all  others,  the  grand  alteration  which  it  is  the  express  design  of 
the  Code  to  effect;  and  although  the  formal  distinctions  be- 
tween Common  Law  and  Equity  pleadings  be,  as  unquestion- 
ably they  are,  abolished  by  that  alteration ;  still,  such  is  not, 
and  cannot  be  the  case,  with  reference  to  the  essential  and  in- 
herent distinctions  between  Law  and  Equity  themselves,  as  two 
separate,  though  connected  sciences. 

As  long  as  the  common  law,  with  all  its  attendant  doctrines, 
remains  an  existent  agent,  so  long  must  the  essentials  of  the  two 
systems,  as  hitherto  administered,  remain  indestructible.  The 
object  of  the  legislature,  doubtless,  was  to  blend  them  into  one 
harmonious  and  connected  whole,  as  far  as  practicable,  both  as 
to  matters  of  form  and  matters  of  substance,  and  much  has  been 
done  in  this  respect ;  but,  to  effect  it  wholly,  was,  and,  as  re- 
gards the  latter  especially,  must  ever  remain*,  beyond  the  reach 
of  their  powers. 


§  108.    Distinctions  between  Law  and  Equity. 

How  far  abolished.'] — In  abroad  and  general  view,  the  former 
distinctions  between  proceedings  at  law  and  proceedings  in 
equity,  are  doubtless  at*  an  end,  according  to  the  intention  of 
the  legislature,  as  expressed  in  the  preamble  of  the  Code, 
above  cited. 

In  Giles  v.  Lyon,  4  Comst.  600, 1  C.  E.  (N.  S.)  257,  the  neces- 
sity of  keeping  that  preamble  in  view,  by  those  who  are  called 
upon  to  interpret  its  provisions,  is  strongly  enforced ;  and  the 
effect  of  the  provisions  above  cited,  is  thus  denned:  "They," 
i.e.,  Law  and  Equity,  "were  to  be  blended  and  formed  into  a 
single  system,  which  should  combine  the  principles  peculiar  to 
20 


306  PLEADING,  ESSENTIAL  REQUISITES. 

each,  and  be  administered  thereafter  through  the  same  forms, 
and  under  the  same  appellation." 

In  Grant  v.  Quick,  5  Sandf.  612,  it  is  held  that  the  distinction 
between  the  legal  and  equitable  jurisdiction  of  all  the  courts  of 
the  State,  except  in  reference  to  the  nature  of  the  relief  de- 
manded, is  now  abolished,  and  it  was  accordingly  held  that  the 
power  of  one  court  to  restrain  an  action  in  another,  has  ceased 
to  exist. 

So,  too,  in  Gardiner  v.  Oliver  Lee's  Bank,  11  Barb.  558,  it  is 
laid  down,  at  p.  568,  that  courts  of  law  and  equity  are  now 
blended  together,  and  held  by  the  same  judges.  It  is  decided, 
however,  in  the  same  case,  that  no  new  rights  of  action  have 
been  conferred  thereby,  and  that  an  action  which,  under  the  old 
system,  would  not  have  been  cognizable  by  either  of  the  sepa- 
rate tribunals,  cannot  be  maintained  under  the  new.  See,  also, 
Bouton  v.  The  City  of  Brooklyn,  7  How.  198.  See  affirmance  of 
last  decision,  15  Barb.  375. 

Similar  principles  are  laid  down  in  Hinman  v.  Judson,  13 
Barb.  629,  on  the  subject  of  equitable  defences  ;  also,  with  great 
force,  in  the  opinion  of  Parker,  J.,  (p.  422,)  in  Marquat  v.  Mar- 
quat,  7  How.  -117,  in  which  he  insists  most  strongly  on  the  ex- 
pediency of  the  judiciary  cooperating  with  the  legislature,  in 
carrying  out  the  reforms  which  have  been  effected :  and  likewise 
in  Hunt  v.  The  Farmers'  Loan  and  Trust  Company,  8  How.  416, 
and  Crary  v.  Goodman,  9  Barb.  657 ;  see,  also,  Fay  v.  Grim- 
steed,  10  Barb.  321  ;  Getty  v.  The  Hudson  River  Railroad  Com- 
pany, 6  How.  269, 10  L.  O.  85 :  and  numerous  other  cases  of  ear- 
lier date  might  be  cited,  were  it  necessary,  to  maintain  the  same 
position. 

The  abolition  in  question  is  then  clearly  effected,  in  a  broad 
and  general  point  of  view,  in  so  far  that  all  distinction  between 
the  courts  in  which  the  plaintiff  is  at  liberty  to  seek  the  remedy 
the  law  provides  in  each  particular  case,  is  abolished.  An  ac- 
tion, whether  legal  or  equitable  in  its  nature,  is  commenced  by 
the  same  form  of  process;  the  names,  offices,  and  general  scope 
of  the  pleadings  in  that  action  (apart  from  matters  of  detail) 
are  the  same  in  both  cases.  The  remedies  heretofore  obtain- 
able by  separate  suits  in  different  courts,  may  now,  as  a  gene- 
ral rule,  be  combined  in  the  same  action ;  the  proceedings  in 
that  action,  when  commenced,  are  cognizable  by  the  same 
judge;  and  that  judge,  in  cases  of  a  mixed  nature,  is  bound, 


PLEADING,  ESSENTIAL  REQUISITES.  307 

whenever  possible,  to  adapt  the  relief  granted  by  him  to  the 
principles  heretofore  administered  by  two  distinct  and  separate 
jurisdictions,  without  giving  an  undue  preference  to  either. 

How  far  Existent.'] — At  this  point,  the  intended,  and  indeed 
expressed  amalgamation  of  the  two  systems  on  the  part  of  the 
legislature,  has  of  necessity  reached  its  limits,  and  the  essential 
distinctions  between  law  and  equity,  and  legal  and  equitable 
relief,  remain  undestroyed  and  indestructible.  Distinct  and 
positive  assertions  of  that  indestructibility  appear,  it  may  be 
safely  said,  in  every  case,  in  which  the  matter  has  been  brought 
seriously  under  the  consideration  of  the  courts  throughout  the 
State. 

In  Shaw  v.  Jayne,  4  How.  119,  2  C.  E.  69,  the  earliest  case 
upon  the  subject  after  the  passage  of  the  Code,  the  position 
above  taken  is  maintained  in  the  clearest  and  most  positive 
terms. 

In  Knowles  v.  Gee,  4  How.  317  ;  Hill  v.  McCarthy,  3  C.  E. 
49 ;  Merrifield  v.  Cooley,  4  How.  272  ;  and  Floyd  v.  Dearborn, 
2  C.  E.  17,  it  also  appears  unequivocally.  That,  although  the 
distinctive  forms  of  action  be  abolished,  the  principles  which 
always  have  governed  them  still  subsist  in  all  their  force,  is 
maintained  in  Hinds  v.  Myers,  4  How.  356,  3  C.  E.  48 ;  and 
McMaster  v.  Booth,  4  How.  427,  3  C.  E.  111.  In  no  case  does 
the  general  principle  come  out  with  greater  clearness,  than  in 
Linden  v.  Hepburn,  3  Sandf.  668,  5  How.  188,  3  C.  E.  165,  9 
L.  0.  80 ;  and  that  clearness  is,  if  possible,  still  augmented  in 
Burget  v.  Bissell,  5  How.  192,  3  C.  E.  215 ;  The  Rochester  City 
Bank  v.  Suydam,  5  How.  216 ;  Milliken  v.  Carey,  5  How.  272, 3  C.  E. 
250,  (a  case  in  which  a  restricted  view  of  the  question  is  taken 
in  other  respects ;)  Carpenter  v.  West,  5  How.  53  ;  Howard  v. 
Tiffany,  3  Sandf.  695, 1  C.E.  (N.  S.)  99  ;  and  Benedict  v.  Seymour, 
6  How.  298.  The  same  may  be  said  as  regards  Fraser  v.  Phelps, 
4  Sandf.  682,  where  it  is  laid  down  as  follows :  "As  we  have 
frequently  had  occasion  to  say,  the  Code  has  not  abolished  the  es- 
sential distinctions  between  suits  at  law  and  in  equity,  nor  oughi 
it  to  be  construed  as  limiting  or  abridging  the  powers  which,  in 
cases  like  the  present,  Courts  of  Equity  have  been  accustomed 
to  exercise."  See,  also,  Crary  v.  Goodman,  9  Barb.  657;  Dauchy 
v.  Bennett,  7  How.  375 ;  Le  Roy  v.  Marshall,  8  How.  373 ;  Cook 
v.  Litchfield,  5  Sandf.  330,  10  L.  O.  330,  affirmed  by  Court  of 
Appeals,  31st  December,  1853;  The  Merchants?  Mutual  Insuromat 


308  PLEADING,  ESSENTIAL  REQUISITES. 

Company  of  Buffalo  v.  Eaton,  11  L.  0.  140;  Bouton  v.  The  City 
of  Brooklyn,  7  How.  198 ;  same  case,  15  Barb.  375 ;  Spencer  v. 
Wheelock,  11  L.  O.  329;  Dobson  v.  Pearce,  1  Duer,  142,  10  L.  O. 
170  ;  not  to  mention  numberless  other  decisions,  in  which  the 
same  rule  has  been  acted  upon  in  spirit,  though  not  asserted  in 
terms,  and  which  will  be  found  in  almost  every  page  of  the  dif- 
ferent reports. 

§  109.  Averments  of  Fact,  Principles  as  to. 

General  Bemarks.~\ —  Universal,  however,  as  has  been  the 
assent  of  the  judicial  body  to  the  general  principle  as  above 
laid  down,  very  great  differences  have  prevailed  amongst  them, 
as  to  the  minor  shades  of  distinction  in  relation  to  its  reduction 
into  practice ;  the  mention  of  which  differences  introduces,  as  its 
necessary  consequence,  the  consideration,  in  a  general  point  of 
view,  of  averments  of  facts  in  pleading. 

The  peculiar  incidents  to  each  of  the  different  proceedings  of 
complaint,  demurrer  or  answer,  and  reply,  the  only  modes  of 
pleading  now  allowable  under  the  Code,  will  be  considered 
hereafter ;  but  there  are,  nevertheless,  certain  broad  and  general 
principles,  common  to  these  forms  indiscriminately,  and  which 
will  be  now  dealt  with. 

The  observations  about  to  be  made,  are,  of  course,  inapplica- 
ble to  the  proceeding  of  demurrer,  nor  will  the  question  of 
merely  responsive  allegations  be  here  treated;  the  following 
remarks  will,  on  the  contrary,  be  strictly  confined  to  the  gene- 
ral principles  of  pleading,  which  govern  averments  of  the  facts 
necessary  to  be  put  in  issue,  either  in  support,  or  in  opposition 
to  a  claim,  and  to  such  averments  only. 

The  general  principles  of  the  Code,  in  relation  to  averments 
of  this  nature,  whether  in  complaint,  answer,  or  reply,  are,  in 
reality,  identical.  The  complaint  must  contain  "a  plain  and 
concise  statement  of  the  facts  constituting  a  cause  of  action,  with- 
out unnecessary  repetition."  (Sec.  142,  sub.  2.)  The  answer, 
"a  statement  of  any  new  matter  constituting  a  defence  or 
counter-claim,  in  ordinary  and  concise  language,  without  repe- 
tition." (Sec  14!),  sub.  2.)  And  the  reply  "  may  allege,  in  ordi- 
nary and  concise  language,  without  repetition,  any  new  matter, 
not  inconsistent  with  the  complaint,  constituting  a  defence  to 
new  matter  in  the  answer,"  by  which  a  counter-claim  is  pleaded. 
Sec.  153. 


PLEADING,  ESSENTIAL  REQUISITES.  309 

The  omission,  in  the  present  measure,  of  the  additional  requi- 
sites imposed  by  the  Codes  of  1848  and  1849,  that  the  averments 
above  alluded  to  were  to  be  made  in  "  ordinary"  language,  and 
"  in  such  a  manner  as  to  enable  a  person  of  common  understand- 
ing to  know  what  is  intended,"  is  significant.  Excellent  as  was 
the  meaning  of  that  provision,  to  carry  it  out  to  its  full  extent 
was  a  matter  of  the  utmost  difficulty,  if  not  wholly  impracticable  J 
first,  because  of  the  consequent  necessity  of  fixing  some  definite 
gauge  of  what  is  or  is  not  "common  understanding;"  and, 
secondly,  because  of  the  difficulty  of  stating  a  legal  cause  of 
action  concisely,  or  even  of  stating  it  at  all,  without  the  employ- 
ment of  legal  terms,  involving  the  consequent,  and  perhaps  still 
greater  difficulty,  of  making  the  statement  thus  framed  intelli- 
gible to  a  person  of  "common  understanding,"  ignorant,  perhaps, 
of  the  very  meaning,  and,  certainly,  of  the  full  import  of  the 
terms  so  used. 

To  have  given  the  extended  interpretation  to  the  words  in 
question,  of  which,  in  strictness,  they  are  capable,  might  have 
been  the  means  of  introducing  a  system  of  averment,  so  loose, 
and  so  illogical,  as,  in  practice,  to  become  almost  intolerable; 
whilst  a  restricted  construction  of  those  words,  such  as  has,  in 
fact,  almost  universally  prevailed,  left  the  question  just  where 
the  present  amendments  of  the  section  have  now  placed  it.  By 
such  a  construction,  a  necessity  of  making  his  pleadings  concise, 
intelligible,  and  explanatory  of  the  matter  really  at  issue,  was 
practically  imposed  upon  the  pleader  in  all  cases,  and  is  now  so 
imposed  in  terms. 

The  traditionary  forms  of  the  old  special  pleading  system  are 
therefore,  as  already  stated,  practically  abolished.  Under  certain 
circumstances,  however,  and  with  certain  modifications,  the  sub- 
stantial wording  of  those  forms  may  still  be  used,  and  used  with 
advantage,  especially  in  actions  which,  under  the  former  prac- 
tice, were  of  purely  common  law  cognizance.  Thus  in  Shaw  v. 
Jayne,  4  How.  119;  2  C.  R  69,  before  cited,  the  mode  of  stating 
a  cause  of  action  for  false  imprisonment,  as  theretofore  in  use 
under  the  old  practice,  was  held  to  be  all  that  was  necessary. 
In  Dollner  v.  Gibson,  3  C.  R.  153,  9  L.  0.  77,  a  most  decided 
preference  is  shown  for  the  emploj^ment  of  the  old-established 
form  of  a  count  for  goods  sold  and  delivered.  In  Leopold  v. 
Poppenheimer,  1  C.  R.  39,  a  complaint  for  breach  of  promise  of 
marriage,  following  the  old  form  of  declaration,  was  declared 
sufficient,  with  some  slight  modifications ;  and,  in  The  Stochbridge 


310  PLEADING,  ESSENTIAL  REQUISITES. 

Iron  Company  v.  Mellen,  5  How.  439,  it  was  considered  that  a 
complaint  against  a  common  carrier,  using  the  first  of  the  old 
common  law  counts,  would  be  good,  although  all  the  other  counts, 
the  pleader  having  employed  the  whole  of  the  old  form,  were 
to  be  stricken  out  as  redundant.  See  also  the  same  general 
principle  laid  down  in  Howard  v.  Tiffany,  3  Sandf.  695,  1  C.  E. 
(N.  S.)  99;  and,  likewise,  in  Root  v.  Foster,  9  How.  37,  and 
Dows  v.  Hotclikiss,  10  L.  0.  281.  This  principle  has,  however, 
only  a  very  limited  application,  and  is  only  properly  applicable 
to  those  cases  in  which  a  sufficient  statement  of  the  facts  on 
which  the  action  is  grounded,  was  in  use  under  the  old  prac- 
tice: iu  others,  it  cannot  be  safely  applied.  See  Blanchard  v. 
Strait,  8  How.  83 ;  Wood  v.  Anthony,  9  How.  78 ;  Eno  v.  Wood- 
worth,  4  Comst.  249,  1  C.  E.  (N.  S.)  262 ;  Sipperly  v.  Troy  and 
Boston  Railroad  Company,  9  How.  83. 

On  the  other  hand,  in  actions  of  an  equitable  nature,  a  decided 
preference  ought  to  be  given  to  the  forms  of  equity  pleading,  so 
far  as  they  are  consistent  with  the  Code.  Coit  v.  Coit,  6  How. 
53.  Although  the  forms  of  common  law  pleading  are  expressly 
abolished  by  the  preamble  of  that  measure,  those  in  equity  are 
not,  and  it  would  seem  that,  so  far  as  they  are  not  inconsistent 
with  the  Code,  they  are  not  repealed.  This  principle  must, 
however,  be  also  kept  within  its  due  limits.  It  will,  there  is 
little  doubt,  hold  good  as  far  as  regards  the  statement  of  facts 
an  which  the  prayer  for  relief  is  grounded.  Beyond  this  it 
cannot  be  carried.  The  former  system  of  allegation  by  way  of 
pretence  and  charge  is  altogether  inadmissible,  and,  if  adopted, 
will  render  the  pleading  objectionable  for  redundancy.  The 
facts  of  the  case  are  required,  and  nothing  else.  Clark  v.  Har- 
wood,  8  How.  470.  An  answer,  drawn  in  conformity  with  the 
old  chancery  rules,  admitting  the  statements  in  the  complaint, 
and  Stating  various  legal  propositions  and  arguments  in  defence, 
was  held  to  be  bad  in  Gould  v.  Williams,  9  How.  51. 

As  a  general  rule,  however,  all  previous  forms  must  be  con- 
sidered as  abolished,  according  to  the  express  provision  to  that 
effect  in  section  69j  and  the  question  then  arises,  what  is  now 
the  proper  form  of  averments  of  fact  for  the  future,  both  gene- 
rally, and  with  reference  to  the  particular  form  of  relief  to  be 
sought  trader  different  states  of  circumstances. 

There  can  be  no  doubt  but  that,  to  a  certain  extent,  the  same 
principles  of  avermenl  will,  fur  the  future,  govern  the  pleadings 
in  all  actions  whatever,  whether  of  common  law  or  equitable 


PLEADING,  ESSENTIAL  REQUISITES.  3H 

cognizance ;  and  indeed  such  was,  in  many  respects,  the  case, 
even  under  the  former  system,  with  reference  to  those  general 
rules  which  lie  at  the  root  of  all  good  pleading  whatever 
whether  legal  or  equitable. 

The  principle  as  to  what  are  or  are  not  constitutive,  as 
opposed  to  probative  facts,  is  thus  laid  down  in  Garvey  v. 
Fowler,  4  Sandf.  665, 10  L.  0. 16 :  "  The  plaintiff  must  now  state 
in  his  complaint  all  the  facts  which  constitute  the  cause  of  action, 
and  I  am  clearly  of  opinion  that  every  fact  is  to  be  deemed  con- 
stitutive, in  the  sense  of  the  Code,  upon  which  the  right  of  action 
depends.  Every  fact  which  the  plaintiff  must  prove,  to  enable 
him  to  maintain  his  suit,  and  which  the  defendant  has  a  right 
to  controvert  in  his  answer,  must  be  distinctly  averred,  and  every 
such  averment  must  be  understood  as  meaning  what  it  says, 
and,  consequently,  is  only  to  be  sustained  by  evidence  which 
corresponds  with  its  meaning." 

The  facts  of  the  case  must,  in  every  form  of  action,  be  set 
forth  with  sufficient  certainty,  so  as  to  give  the  court  adequate 
data  on  which  to  ground  a  judgment,  or  demurrer  will  lie. 
Tollman  v.  Green,  3  Sandf.  437. 

The  following  general  views  are  laid  down  in  Mann  v.  More- 
wood,  5  Sandf.  557 :  A  complaint  must  set  forth  all  the  material 
and  issuable  facts,  which  are  relied  on  as  establishing  the  plain- 
tiff's right  of  action,  and  not  the  inferences  from  those  facts 
which,  under  the  advice  of  his  counsel,  he  may  deem  to  be  con- 
clusions of  law.  The  facts  which  are  required  to  be  stated  as 
constituting  the  cause  of  action,  can  only  mean  real,  traversable 
facts,  as  distinguished  from  propositions  or  conclusions  of  law, 
since  it  is  the  former,  not  the  latter,  that  can  alone,  with  any 
propriety,  be  said  to  constitute  the  cause  of  action. 

In  Fay  v.  Grimsteed,  10  Barb.  321,  the  principles  of  pleading 
under  the  Code  are  thus  stated:  "It  is  one  of  the  principal 
objects  of  the  Code  of  procedure  to  abrogate  the  old  forms  of 
pleading,  and  to  bring  the  parties  to  a  plain,  concise,  and  direct 
statement  of  the  facts  which  constitute  the  cause  of  action,  or  the 
defence,  in  place  of  the  general  statement  heretofore  in  use." 

In  Bridge  v.  Payson,  5  Sandf.  210,  analogous  views  are  held, 
with  reference  to  the  mode  of  stating  defences.  See  likewise  5 
Stoddard  v.  Onondaga  Annual  Conference,  12  Barb.  573,  in  rela- 
tion to  what  will,  or  will  not  be  held  to  be  new  matter  in  defence, 
and  necessary,  as  such,  to  be  alleged  in  the  answer. 


312  PLEADING,  ESSENTIAL  REQUISITES. 

In  Smith  v.  Lockwood,  13  Barb.  209,  10  L.  0.  232,  1  C.  E. 
(N.  S.)  319,  in  which  a  complaint,  based  on  general  averments 
alone,  was  held  bad,  it  was  said:  "The  court  must  see  by  the 
facts  set  forth  in  the  complaint,  that  the  plaintiffs  have  sustained, 
or  are  threatened  with  some  legal  injury.  The  objection  is  fatal 
to  the  complaint,  as  it  now  stands."  See  also  other  cases  to  the 
same  purport,  cited  under  the  next  head. 

In  Clark  v.  Harwood,  8  How.  470,  in  which  the  complaint  con- 
tained a  series  of  pretences  and  charges,  according  to  the  old 
equity  system,  the  court  said :  "  The  plaintiff  is  to  state  the  facts 
which  constitute  his  cause  of  action,  and  nothing  more."  See 
also  Gould  v.  Williams,  9  How.  51,  holding  that  an  answer  must 
now  either  deny  allegations  found  in  the  complaint,  or  state  new 
matter  by  way  of  avoidance,  and  that  the  old  chancery  practice 
of  stating  legal  propositions  and  arguments  in  defence  is  now 
inadmissible. 

And,  it  would  seem  that  allegations  of  facts,  though  grounded 
on  information  and  belief,  should  be  positively  made  in  terms. 
Truscott  v.  Dole,  7  How.  221 ;  Milliken  v.  Carey,  5  How.  272,  3 
C.  R.  250;  Dollner  v.  Gibson,  below  cited.  This  principle, 
though  applicable  as  a  general  rule,  is,  however,  open  to  consider- 
able modification.  See  Radway  v.  Mather,  5  Sandf.  654,  where 
a  statement  of  a  portion  of  the  facts  constituting  a  cause  of  action, 
on  belief  only,  was  held  to  be  sufficient,  and  a  demurrer  on  that 
ground  overruled  as  frivolous. 

Where  more  than  one  cause  of  action  or  ground  of  defence  is 
relied  on,  it  is  essential  to  their  validity  that  they  should  be 
"separately  stated,"  and  the  safe  rule  is  to  mark  the  separation, 
by  fitting  and  appropriate  divisions,  by  way  of  commencement 
and  conclusion.  See  Benedict  v.  /Seymour,  6  How.  298;  Lippincott 
v.  Goodivin,  8  How.  242;  though  it  would  seem,  from  Bridge 
v.  Poyson,  5  Sandf.  210,  that  this  is  not  absolutely  essential.  It 
is,  however,  laid  down  in  that  decision,  that  each  statement 
must  1)0  complete  in  itself;  and  it  has  been  decided,  in  numerous 
cases,  hereafter  cited  in  Chap.  IV.  of  this  book,  that  the  mixing 
up  separate  grounds  of  action  or  defence  in  one  general  state- 
ment, without  proper  distinctions,  will  render  the  pleading  fatally 
objectionable.  Rule  87,  also  inserted  on  the  last  revision,  and 
which  provides  that  "  In  all  cases  of  more  than  one  distinct 
cause  of  action,  defence,  counter-claim,  or  reply,  the  same  shall 
not  only  be  separately  stated,  but  plainly  numbered,"  adds  force 


PLEADING,  ESSENTIAL  REQUISITES.  313 

to  the  views  maintained  in  Benedict  v.  Seymour,  and  Lippincott 
v.  Goodwin,  although,  in  the  former  of  the  cases  especially,  these 
views  appear  to  be  somewhat  over-rigidly  laid  down. 

It  would  be  difficult  to  find  a  clearer  or  more  accurate  defini- 
tion of  what  pleadings  ought  to  be  under  the  Code,  and  this,  in 
all  cases,  and  without  reference  to  the  peculiar  nature  of  the 
relief  sought,  than  that  laid  down  in  Boyce  v.  Brown,  7  Barb. 
80,  3  How.  391,  in  the  following  words:  "The  pleader  may- 
use  his  own  language,  but  the  necessary  matter  must  be  there, 
and  be  stated  in  an  intelligible  and  issuable  form,  capable  of 
trial.  Facts  must  still  be  set  forth  according  to  their  legal  effect 
and  operation,  and  not  the  mere  evidence  of  those  facts,  nor 
arguments,  nor  inferences,  nor  matter  of  law  only."  "Nor 
should  pleadings  be  hypothetical,  nor  alternative,"  and  many 
cases  under  the  old  practice  are  cited.  "  Good  pleading  should 
be  material,  single,  true,  unambiguous,  consistent,  and  certain 
to  a  common  intent,  as  to  time,  place,  person,  and  quantity,  and 
not  redundant  or  argumentative."  Again,  "As  a  general  rule, 
a  pleading,  to  be  good  by  the  settled  principles  of  pleading  as 
modified  by  the  Code,  must  state  the  facts  constituting  a  legal 
cause  of  action  or  ground  of  defence;  and  these  should  be  set 
forth  in  a  plain,  direct,  definite,  certain,  and  traversable  manner, 
and  according  to  their  legal  effect." 

To  this  extent,  then,  the  pleadings  in  all  actions,  of  whatso- 
ever nature,  must  conform  to  the  same  general  requisites;  but, 
from  this  point,  the  question  branches  out  into  many  ramifica- 
tions, on  which  the  different  courts,  and  different  branches  of 
the  same  court,  have  held  widely  diverse  opinions. 

Distinction  between  Legcd  and  Equitable  Averments.'] — The  grand 
conflict  of  judicial  construction,  has  been  as  to  whether  dis* 
tinctions  ought  or  ought  not  to  be  drawn,  between  the  mode  of 
averment  of  causes  of  action,  or  grounds  of  defence,  of  a  strictly 
legal  nature  on  the  one  hand,  or  of  one  strictly  equitable  on  the 
other ;  or  whether,  on  the  contrary,  the  same,  and  that  a  rigid 
and  inflexible  system  of  averment,  is  essential  in  all,  whether 
legal  or  equitable  in  their  nature  and  origin ;  and  not  only  this, 
but  some  cases  have  gone  so  far  as  to  shadow  out  the  doctrine, 
that  a  cause  of  action  belonging  to  the  one  class,  cannot  be  met 
by  a  line  of  defence,  belonging  to  the  other,  though,  on  a  careful 
comparison  of  the  whole  of  the  reported  cases,  it  does  not  appear 
that  this  view  was  sound,  even  under  the  Codes  of  1849  and 


314  PLEADING,  ESSENTIAL  REQUISITES. 

1851 ;  see  Hill  v.  McCarthy,  3  C.  E.  49 ;  Otis  v.  Sill,  8  Barb. 
102  ;  Crary  v.  Goodman,  9  Barb.  657.  The  recent  amendments 
in  sees.  150  and  167,  put  the  point  now  beyond  question,  that 
such  joinder  is  admissible,  wherever  appropriate. 

Liberal  View  of  the  /Subject — Averments  may  be  adapted  to  Nature 
of  Case.'] — In  Shaw  v.  Jayne,  4  How.  119,  2  C.  B.  69,  above  cited, 
the  more  liberal  view  on  this  contested  point  was,  for  the  first  time, 
asserted,  and  it  was  held,  "  that  the  pleader  should  adapt  the 
form  of  his  statement  to  the  class,"  i.  e.,  of  legal  or  equitable 
actions  "to  which  the  case  belongs."  See,  also,  Otis  v.  Sill,  8 
Barb.  102,  above  noticed.  In  Knowles  v.  Gee,  4  How.  317,  it 
was  admitted  that  "the  legislature,  by  adopting  the  forms  of 
chancery  pleadings,  had  given  unequivocal  indication  of  a  pre- 
ference for  those  forms,"  and  that,  in  consolidating  two  distinct 
systems  of  jurisprudence,  "it  became  indispensable  to  borrow 
something  from  each."  In  Linden  v.  Hepburn,  2  Sandf.  668, 
5  How.  188,  3  C.  B.  165,  9  L.  0.  80,  the  principle  that  the  dis- 
tinction between  legal  and  equitable  remedies  still  subsists,  is 
laid  down  in  the  clearest  terms.  In  Burget  v.  Bissell,  5  How. 
192,  3  C.  R.  215,  the  general  rule  above  referred  to,  i.  e.,  that 
the  mode  of  statement  should  be  adapted  to  the  relief  claimed, 
is  again  clearly  repeated,  the  distinction  being  again  drawn 
between  actions  of  legal  and  equitable  cognizance;  and  the 
principle  laid  down,  that,  in  cases  where  there  was  any  doubt 
whether  the  action  or  defence  was  of  an  equitable  nature,  any 
averments  adapted  to  the  latter  contingency  ought  to  be  allowed 
to  stand ;  whilst,  in  The  Rochester  Bank  v.  Suydam,  5  How.  216, 
the  same  conclusions  are  enounced  with  the  utmost  clearness, 
and  in  the  following  terms: 

"The  kind  of  relief  given  by  a  Court  of  Equity,  imperatively 
required  a  different  mode  of  stating  the  case,  from  that  adopted 
in  the  Common  Law  Courts. 

"The  decree  in  chancery,  with  all  its  varied  provisions,  its 
conditions  and  limitations,  could  not  be  engrafted  upon  the 
record  of  a  common  law  action.  The  two  were  incompatible. 
From  the  one  was  carefully  excluded  every  fact,  not  essential 
to  enable  the  court  to  determine  for  which  party  to  give  judg- 
ment; the  other  required  :i  consideration  of  all  the  circum- 
stances, bearing  upon  the  nature  of  the  judgment,  and  going  to 
modify  or  v;iry  its  provisions." 

The  learned  judge  then  summed  up  his  argument  as  follows: 


PLEADING,  ESSENTIAL  REQUISITES.  815 

"So  long  as  jurisdiction  in  equity  and  law  are  kept  distinct, 
and  courts  of  justice  are  permitted  to  adapt  the  relief  thus  af- 
forded to  the  facts  and  circumstances  in  one  class  of  cases, 
while  they  are  confined  to  a  simple  judgment  for  or  against  the 
plaintiff  in  all  others,  so  long  must  different  rules  be  applied  to 
pleadings  at  law  or  in  equity. 

"  To  do  this,  is  not  inconsistent  with  the  provisions  of  the 
Code,  which  does  not  attempt  to  abolish  the  distinction  between 
law  and  equity,  even  if  the  legislature  had  the  power  to  do  so 
under  the  Constitution.     See  Const.,  Art.  6,  sees.  3  and  5. 

"My  conclusion,  therefore,  is,  that  the  statement  of  facts  in  a 
complaint  should  be  in  conformity  with  the  nature  of  the 
action.  If  the  case,  and  the  relief  sought,  be  of  an  equitable 
nature,  then  the  rules  of  chancery  pleading  are  to  be  applied ; 
otherwise  those  of  the  common  law." 

The  motion  to  strike  out  the  averments  there  complained  of, 
though  embracing  much  circumstantial  detail,  and  apparently 
many  matters  of  mere  evidence,  was  accordingly  denied,  "for 
the  reason  that  the  convenience  of  a  Court  of  Equity  is  pro- 
moted, by  having  as  many  of  the  circumstances  appear  in  the 
pleadings,  and  as  few  in  the  proofs,  as  possible,  and  for  the 
other  reasons  already  given." 

In  Wooden  v.  Waffle,  6  How.  145,  1  C.  E.  (K  S.)  392,  the 
reasoning  in  the  foregoing  cases  is  reiterated  by  the  same  learn- 
ed judge  at  great  length,  in  consequence  of  the  adverse  opinions 
in  Milliken  v.  Carey,  and  Williams  v.  Hayes,  hereafter  noticed. 
The  distinction  between  the  necessary  allegations  in  common 
law  and  equity  pleadings  is  thus  drawn  :  "  The  allegations  in  a 
pleading  at  law,  consist  of  a  chain  of  facts,  all  tending  to  estab- 
lish some  definite  legal  right.  An  equity  pleading,  on  the  con- 
trary, frequently,  if  not  generally,  consists  of  an  accumulation 
of  facts  and  circumstances,  without  logical  dependency,  but  the 
accumulated  weight  of  which  is  claimed  to  be  sufficient  to  raise 
ox  defeat  an  equity.  If  a  single  link  be  destroyed  in  the  for- 
mer, the  whole  conclusion  falls ;  but,  if  you  abstract  a  fact  from 
the  latter,  you  have  not  of  necessity  broken  the  chain,  but  only 
diminished  the  weight  of  the  whole."  After  drawing  a  similar 
distinction  between  what  are  really  material  issues,  in  legal  and 
equitable  actions,  and  defining  the  latter  as  "an  issue  upon  a 
fact  which  has  some  bearing  upon  the  equity,  and  ought  to  be 
established,"  but  not  a  mere  matter  of  evidence ;  and  stating 


316  PLEADING,  ESSENTIAL  REQUISITES. 

as  one  of  the  reasons  why  chancery  pleading  was  made  more 
in  detail,  that  its  purpose  was  "to  put  the  court  in  possession 
of  all  the  facts,  going  to  show,  both  the  plaintiff's  right  to  relief, 
and  what  that  relief  should  be;"  the  learned  judge  proceeds 
to  lay  down,  that  this  reason  "is  in  no  way  affected  by  any 
provision  of  the  Code.  Equity  jurisdiction  is  maintained.  It 
is  exercised  upon  the  same  principles,  and  to  the  same  extent, 
as  heretofore.  The  mode  of  trial  is  the  same.  The  relief  is 
adapted  to  the  circumstances  of  the  case.  Every  reason,  there- 
fore, which  ever  existed  for  a  full  statement  of  the  case,  exists 
now." 

In  Howard  v.  Tiffany,  3  Sandf.  695,  1  C.  R.  (N.  S.)  99,  it  is 
also  laid  down  that,  where  a  portion  of  the  relief  sought  is  of 
an  equitable  nature,  it  will  be  often  indispensable  to  set  forth 
facts,  which  need  not  be  stated  in  respect  of  the  other  relief, 
"  and,  as  much  at  large  as  was  formerly  done  in  a  well-drawn 
bill  in  chancery;"  and  also,  that  the  "facts  constituting  a  cause 
of  action,  include  not  merely  the  facts  upon  which  the  plaintiff's 
right  to  relief  is  founded,"  but  also  "all  such  facts  as  are  ne- 
cessary to  found  the  particular  relief  demanded,  and  to  enable 
the  court  to  give  the  proper  judgment  in  the  action." 

In  Minor  v.  Terry,  6  How.  208,  similar  principles  are  sus- 
tained, in  relation  to  pleading  under  the  Code,  generally  con- 
sidered; and  it  is  laid  down  that,  since  the  abolition  of  forms, 
every  action  is  analogous  to  an  action  on  the  case,  under  the 
old  practice,  in  which  the  pleader  was  accustomed  to  set  forth  the 
facts  of  his  case  particularly,  and  at  large.  The  rule  with  re- 
ference to  the  particular  subject  of  injunction  is  thus  laid  down  : 
"So,  in  a  complaint  in  equity,  in  most  cases,  where  an  injunc- 
tion is  prayed  for,  it  is  competent  to  set  out  the  facts  which 
constitute  the  foundation  of  the  right,  with  particularity  and 
minuteness." 

( bit  v.  Colt,  6  How.  53,  before  cited,  is  likewise  a  strong 
authority  in  favor  of  the  doctrine  that,  in  equitable  actions, 
the  former  practice  and  forms  in  equity  are  decidedly  to  be 
preferred. 

In  Fay  v.  Grimsteed,  11  Barb.  821,  it  is  laid  down,  with  re- 
ference to  the  system  of  allegation  and  counter  allegation  pro- 
vided for  by  the  Code,  that,  in  this  respect,  the  pleadings  are 
similar  to  those  whicb  obtained  in  the  courts  of  equity.  See, 
likewise,  us  to  the  doctrine  of  parties,  M<-I\cnziev.  L 'Amoureux, 


PLEADING,  ESSENTIAL  REQUISITES.  317 

11  Barb.  516;   Conro  v.  Port  Henry  Iron  Company,  12  Barb. 
27,  (p.  58 ;)  Ricart  v.  Townsend,  6  How.  460. 

Such  then  is  the  view  taken  on  the  one  side  of  the  question, 
which  holds  that,  for  practical  purposes,  a  distinction  still  exists 
between  the  pleadings,  in  actions  of  a  purely  legal  or  purely 
equitable  nature ;  that,  in  actions  by  which  general  or  special 
relief  is  sought,  as  distinguished  from  those  for  the  simple  re- 
covery of  money  or  of  damages,  a  greater  latitude  of  averment 
will  be  permitted;  and  that,  wherever  the  case  is  one  of  doubt- 
ful cognizance,  the  courts  will  be  rather  disposed  to  allow  doubt- 
ful averments  to  stand,  than  to  strike  them  out,  at  the  risk  of 
striking  out  a  portion  of  what  the  party  himself  considers  to  be 
his  case,  and,  on  the  statement  of  which,  some  species  of  relief 
might  possibly  be  grounded  at  the  hearing. 

Restricted  View,  grounded  on  the  old  Common  Law  Principles. ,] 
— In  Milliken  v.  Carey,  5  How.  272,  3  C.  K.  250,  principles  in 
direct  opposition  to  the  above,  and,  in  particular,  in  direct  oppo- 
sition to  those  in  Howard  v.  Tiffany,  above  cited,  are  enounced; 
and  a  number  of  averments,  tending  to  strengthen  a  case  for 
equitable  relief,  and,  in  particular,  tending  to  show  the  neces- 
sity of  an  injunction  being  granted,  were  struck  out  as  sur- 
plusage. Though  admitting,  that  there  are  "actions  of  legal 
and  equitable  cognizance,  between  which,  as  heretofore,  the 
Constitution  and  the  laws  recognize  a  distinction,"  (on  which 
point  the  case  has  been  before  cited,)  the  learned  judge  con- 
sidered, nevertheless,  that,  as  regards  matters  of  pleading,  that 
distinction  does  not  exist ;  that,  under  the  Code,  a  bare  and 
naked  statement  of  the  facts  sufficient  to  ground  a  title  to  re- 
lief, is  all  that  is  admissible :  and,  that  nothing  more  than  this 
can  be  allowed,  even  in  actions  of  equitable  cognizance,  under 
which  head  the  case  itself,  (a  suit  to  set  aside  a  trust  deed  on 
the  ground  of  fraud,)  was  clearly  to  be  classified.  A  number 
of  statements,  tending  to  establish  such  fraud  on  the  part  of 
the  persons  against  whom  relief  was  sought,  were  accordingly 
considered  to  be  irrelevant,  and  an  injunction  was  denied,  upon 
the  complaint  as  it  then  stood;  on  the  ground  that  those  state- 
ments could  not  properly  stand  as  part  of  it,  but  must  be  se- 
parately brought  before  the  court  on  affidavit,  the  pleading 
itself  being  confined  to  a  simple  statement  of  the  facts  con- 
stituting the  cause  of  action,  to  the  exclusion  of  collateral  or 


318  PLEADING,  ESSENTIAL  REQUISITES. 

corroborating  circumstances.  See,  also,  on  this  last  point,  Put- 
nam v.  Putnam,  2  C.  E.  64. . 

In  Floyd  v.  Dearborn,  2  C.  E.  17,  a  rigid  view  on  the  subject 
is  likewise  taken  ;  and  in  Barton  v.  Sackett,  1  C.  E.  96,  3  How. 
358,  similar  principles  were  indirectly  enounced :  but  the 
strongest  authority  in  support  of  this  restricted  construction,  is 
JDollner  v.  Gibson,  3  C.  E.  153,  9  L.  0.  77,  a  decision  which,  if 
sustained,  reestablishes  the  old  system  of  common  law  plead- 
ing in  all  its  strictness,  and  sets  completely  at  naught  the 
abolition  of  the  forms  of  that  system,  enacted  by  section  140. 
The  opinion  in  this  case  declares,  in  actual  words,  that  that 
abolition  "in  reality  amounted  to  nothing,"  and  lays  down  as 
a  rule,  that,  not  "the  facts  constituting  the  cause  of  action,"  as 
provided  by  section  142,  as  those  facts  actually  occurred ;  but, 
on  the  contrary,  the  legal  conclusions  derived  from  those  facts, 
form,  not  merely  the  proper,  but  the  only  admissible  subjects 
of  averment. 

The  statement  there  drawn  in  question,  was  one  to  the  effect, 
that  a  certain  sale  was  made  by  one  Adam  Maitland,  as  agent  on 
behalf  of  the  defendant,  instead  of  averring  the  sale,  as  doubt- 
less might  have  been  done,  as  one  by  the  defendant  himself: 
and  the  learned  judge  granted  a  motion  to  strike  out  all  the 
averments  in  relation  to,  or  connected  with,  Maitland's  agency, 
as  immaterial,  though,  by  doing  so,  the  whole  cause  of  action 
was  stricken  out.  See  the  same  case,  as  hereafter  noticed,  on 
the  consideration  of  immaterial  or  redundant  averments,  and 
the  measures  to  be  pursued  in  relation  thereto.  It  would  ap- 
pear, however,  that  this  decision  has,  in  fact,  been  reversed  by 
the  General  Term,  though  that  case  has  not  yet  been  formally 
reported. 

In  Partisan  v.  Taylor,  8  Barb.  250,  1  C.  E.  (N.  S.)  174,  it  was 
also  held,  that  statements  of  circumstances,  tending  to  establish 
that  a  mortgage,  sought  to  be  foreclosed,  had  been  long  since 
paid  off,  were  immaterial;  and  that  payment  of  such  mortgage 
ought  to  have  been  pleaded,  and  the  circumstances  stated 
brought  forward  as  evidence  in  proof  of  that  averment. 

In  Oahoon  v.  The  Bank  of  Utica,  7  How.  134,  a  strictly  legal 
view  was  taken  with  reference  to  the  joinder  of  actions  under 
the  Code,  both  at  Special  and  at  General  Term;  see  likewise 
Alger  v.  QcoviUe,  6  How.  131,  1  C.  E.  (N.  S.)  303;  but  the  for- 
mer decision  was  reversed,  and  that  joinder  admitted,  on  equi- 


PLEADING,  ESSENTIAL  REQUISITES.  319 

table  principles,  by  the  Court  of  Appeals,  in  Cahoon  v.  The 
Bank  of  Utica,  7  How.  401.— Notes  of  Court  of  Appeals,  30th 
Dec.,  1852. 

Remarks — Liberal  View  'preferable.'] — The  cases  last  cited  are 
in  unquestionable  conflict  with  those  in  the  previous  division, 
and,  it  is  submitted,  in  conflict  also  with  the. general  principle 
of  the  Code  itself.  The  spirit  of  that  measure,  unquestionably, 
is  to  do  away  with  all  technical  rules,  as  such — a  spirit  espe- 
cially evidenced  by  sec.  159,  which  provides  that,  in  the  con- 
struction of  a  pleading,  for  the  purpose  of  determining  its  effect, 
its  allegations  shall  be  liberally  construed,  with  a  view  to  sub- 
stantial justice  between  the  parties.  See  also  sec.  176,  to  a 
similar  effect.  The  measure,  taken  as  a  whole,  is  one  of  a 
remedial,  and  not  of  a  restrictive  nature,  and  ought  to  be  so 
construed ;  and,  whenever  any  doubt  exists  as  to  its  proper  con- 
struction, the  preponderance  ought  to  be  in  favor  of  enlarging, 
rather  than  derogating  from  the  remedial  provisions  it  contains. 
Construing  it  in  this  spirit,  a  plaintiff  or  defendant  ought,  within 
reasonable  limits,  to  be  allowed  the  privilege  of  stating  his  case 
in  whatever  manner  he  may  choose,  provided  he  comply  with 
the  general  requisites  prescribed.  So  far,  indeed,  from  any 
tendency  to  contract  the  rules  of  equitable  pleading,  and  to  bind 
down  the  mode  of  averment  in  equitable  cases,  by  the  strict 
and  rigid  forms  of  the  common  law,  being  evinced  ;  a  directly 
contrary  spirit  is  manifested,  by  the  positive  intention  to  abolish 
those  forms  altogether,  as  expressed  in  the  preamble,  (in  which 
those  in  equity  are  not  even  alluded  to;)  and  by  the  fact  that, 
in  the  body  of  the  act,  the  usual  course  of  equity  pleading  is 
prescribed,  and  the  very  names  of  equity  pleadings  adopted, 
without  alteration,  except  in  the  mere  substitution  of  the  term 
"complaint"  for  the  term  "bill." 

The  principles  laid  down  in  the  cases  last  cited  are,  unques- 
tionably, if  sustained  to  their  full  extent,  a  complete  abolition 
of  all  equitable  pleading  whatever;  and  amount  to  a  declara- 
tion, that  the  most  rigid  rules  of  averment,  according  to  the 
spirit  of  the  old  common  law  system,  are  still  enforceable  in  all 
their  pristine  strictness,  in  all  cases,  whether  of  legal  or  equita- 
ble origin. 

Facts,  not  Conclusions,  of  Law  to  be  stated.]  —  This  species  of 


320  PLEADING,  ESSENTIAL  REQUISITES. 

interpretation,  especially  as  carried  out  in  the  last  cases,  seems 
also  to  militate  irreconcilably  with  another  important  class 
of  decisions,  which  lay  down,  in  distinct  terms,  the  principle 
that,  under  the  Code,  the  actual  facts  of  the  case  form,  and  form 
alone,  the  proper  subjects  of  pleading,  and  that  conclusions 
of  law,  as  such,  are  not  admissible  at  all,  and,  if  standing  alone, 
will  neither  suffice  to  establish  a  cause  of  action,  nor  to  consti- 
tute a  defence. 

Thus,  in  Beers  v.  Squire,  1  C.  R.  88,  a  mere  denial  of  indebted- 
ness, equivalent  to  the  old  plea  of  nil  debet,  unaccompanied  by 
any  allegation  of  facts,  was  held  to  be  no  defence  at  all  to  an 
action  on  a  promissory  note,  and  the  answer  was  accordingly 
stricken  out  as  frivolous,  and  judgment  awarded  on  a  motion 
for  that  purpose.  In  Pierson  v.  Cooley,  1  C.  R.  91,  and  M'Mur- 
ray  v.  Giffbrd,  5  How.  14,  the  same  point  was  decided;  and 
similar  views  are  expressed  in  Mier  v.  Cartledge,  4  How.  115 ;  8 
Barb.  75,  2  C.  R.  125.  In  Mullen  v.  Kearney,  2  C.  R.  18,  though 
no  facts  are  given,  the  same  principle  is  applied  to  all  cases,  in 
the  following  words,  i.  e.:  "An  answer  which  admits  all  the 
facts  on  which  the  plaintiff's  cause  of  action  is  founded,  and 
merely  denies,  generally,  that  the  plaintiff  has  a  cause  of  action, 
is  frivolous,  and  will  be  stricken  out." 

In  Bentley  v.  Jones,  4  How.  202,  a  mere  denial  of  interest  in 
the  premises  there  in  controversy,  without  stating  facts  to  dis- 
prove specific  allegations,  showing  that  such  an  interest  existed, 
was  again  held  to  be  bad,  "  because  it  did  not  involve  a  traversa- 
ble  fact,  but  merely  a  conclusion  of  law."    In  Russell  v.  Glapp, 

4  How.  347;  7  Barb.  482;  3  C.  R.  64;  Olenny  v.  Hitchins,  4 
How.  98 ;  2  C.  R.  56 ;  Tucker  v.  Rushton,  2  C.  R.  59 ;  7  L.  O. 
315  ;  Neefus  v.  KloppenburgJt,  2  C.  R.  76 ;  Steivart  v.  Bouton,  6 
How.  71 ;  9  L.  0.  353  ;  1  C.  R.  (N.  S.)  404 ;  and  Eno  v.  Wood- 
worth,  4  Comst.  249;  1  C.  R.  (N.  S.)  262,  the  same  positions  are 
fully  sustained. 

Nor  do  the  more  recent  cases  in  any  manner  recede  from  the 
position  laid  down  in  those  above  cited.    In  Mann  v.  Moomoood, 

5  Sandf.  557,  it  is  held,  that  inferences  and  conclusions  of  law, 
an;  tin;  province  of  the  court,  and  not  of  the  pleader;  and  that 
the  complaint  should  state  the  facts,  and  the  facts  alone.  The  old 
chancery  system  of  charge  and  pretence,  is  also  entirely  inad- 
missible  In  a  pleading,  which  should  state  the  facts,  and  the  facts 
alone,     ('lark  v.  Harwood,  8  How.  470.     See  likewise  as  to  an 


PLEADING,  ESSENTIAL  REQUISITES.  321 

answer  framed  on  the  old  chancery  mode,  Gould  v.  Williams,  9 
How.  51.  A  mere  averment  of  adverse  possession,  without  stat- 
ing the  facts  or  circumstances,  was  held  bad  in  Clarice  v.  Hughes, 
13  Barb.  147.  So  also,  a  complaint  in  the  words  of  a  penal 
statute,  without  particularizing  the  offence  committed.  More- 
house v.  Crilly,  8  How.  431.  Nor  is  an  express  reference  to  a 
statute  necessary,  where  facts  are  alleged  which  bring  the  case 
within  its  operation.  Goelet  v.  Coiudrey,  1  Duer,  132.  See  too  as 
to  a  restrictive  statute,  Smith  v.  Lockwood,  13  Barb.  209 ;  10  L.  O. 
232 ;  1  C.  E.  (N.  S.)  319.  So  likewise  as  to  a  denial  of  liability, 
on  a  note  admitted  to  be  made,  Mdson  v.  Dillaye,  8  How.  273 ; 
Gunter  v.  Oatlin,  1  Duer,  253 ;  11  L.  O.  201.  As  to  the  defence 
of  usury,  without  stating  the  facts  relied  on,  Gunter  v.  Catlin, 
supra.  As  to  the  facts  in  relation  to  notes  received  by  defendant, 
on  which  indebtedness  was  alleged,  to  show  his  liability  to 
plaintiff,  Lienan  v.  Lincoln,  12  L.  O.  29.  So  also,  as  to  facts 
to  show  defendant's  liability  to  plaintiff,  on  a  suit  for  use  and 
occupation  of  lands,  Hall  v.  Southmayd,  15  Barb.  32.  Under 
the  Code  there  is  no  general  issue,  under  which  proof  of  the 
facts  which  tend  to  a  conclusion  of  law  can  be  introduced,  and 
they  must  therefore  be  specifically  averred,  when  the  conclusion 
is  drawn  by  the  court,  with  whom  and  whom  alone  it  rests  to 
do  so.     Gunter  v.  Catlin,  Mann  v.  Morewood,  above  cited. 

The  point,  therefore,  that  mere  conclusions  of  law  are  not 
admissible  as  matters  of  defensive  pleading,  appears  to  be  un- 
questionably established.  If  not  admissible  as  a  defence,  it 
seems  to  follow,  as  a  necessary  conclusion,  that  averments  of 
this  description,  standing  alone,  are  not  sufficient  for  the  estab- 
lishment of  a  cause  of  action ;  and  that  the  facts  themselves  of 
the  case,  as  they  really  occurred,  and  not  the  legal  conclusion 
to  be  drawn  from  them,  ought,  in  all  cases,  to  be  pleaded.  The 
circumstance  that  the  party  may  be  obliged,  under  the  new 
system,  to  swear  to  every  fact  that  he  avers  in  his  pleading, 
and,  though  willing  to  swear  to  such  fact  as  it  actually  oc- 
curred, might  most  conscientiously  object  to  swear  positively  to 
the  conclusion  of  law  to  be  drawn  from  it,  is,  also,  a  considera- 
tion entitled  to  its  fall  weight.  It  seems  to  follow,  as  a  neces- 
sary consequence  from  the  foregoing  premises,  that  what  is 
law  with  respect  to  defensive,  must  be  law  with  respect  to 
aggressive  pleading;  and  that  the  principle  laid  down  in  Doll- 
uer  v.  Gibson,  and  Pattison  v.  Taylor,  i.  e.,  that  the  legal  conclu- 
21 


322  PLEADING,  ESSENTIAL  REQUISITES. 

sion  derived  from  the  facts  of  the  case,  and  not  the  facts  them- 
selves, on  which  that  conclusion  is  founded,  as  those  facts  oc- 
curred, ought,  and  ought  alone,  to  be  averred  in  a  complaint, 
cannot  be  sound.  If  not,  then,  a  fortiori,  the  principle  that  such 
facts  cannot  be  pleaded  at  all,  in  the  form  in  which  they  really 
happened,  and,  if  so  pleaded,  will  be  actually  struck  out  as  irre- 
levant, seems  incapable 'of  standing  the  test  of  critical  inquiry. 

Arguments,  too,  standing  alone,  are  inadmissible  as  matters 
of  pleading ;  the  material  and  traversable  facts  must  be  alleged, 
and  not  left  to  inference.  Lewis  v.  Kendall,  6  How.  59 ;  1  C 
E.  (N.  S.)  402.  See  likewise  Gould  v.  Williams,  9  How.  51, 
above  noticed. 

The  mere  averment  of  the  intentions  of  parties  in  executing 
a  written  instrument,  without  any  direct  allegations  of  mistake, 
or  surprise,  or  any  facts  tending  to  such  a  conclusion,  was,  in 
accordance  with  the  general  principle,  that  facts,  not  conclusions, 
are  to  be  averred,  held  to  be  bad  pleading,  in  Barton  v.  Sach- 
ett,  1  C.  K.  96 ;  3  How.  358.  Indefiniteness,  in  general,  is 
an  objection  which  must,  on  all  occasions,  be  provided  against. 
An  answer,  not  giving  proper  particulars  of  a  demand  of  set- 
off, but  following  the  words  of  the  old  common  law  counts  in 
assumpsit,  was  held  to  be  bad,  in  Wiggins  v.  Gaus,  3  Sandf. 
738 ;  1  C.  K.  (N.  S.)  117.  Thus,  also,  a  bare  averment  in  slan- 
der, "  that  what  the  defendant  said  of  the  plaintiff  was  true," 
no  facts  being  stated  in  support  of  a  justification,  was  overruled. 
Anon.,  3  How.  406.  So,  likewise,  in  an  action  on  a  promissory 
note,  where  the  allegations  in  the  complaint  were  insufficient,  a 
mere  denial  that,  "  by  reason  of"  the  allegations  in  the  com- 
plaint, the  plaintiff  was  entitled  to  judgment,  without  specific- 
ally taking  the  objection,  or  traversing  any  point  in  the  com- 
plaint,  was  held  to  be  no  denial.  Hoxie  v.  Gushman,  7  L.  0. 
149. 

Constitutive^  not  Probative  Facts  to  be  averred. — Although,  then, 
the  general  doctrine  of  the  more  liberal  cases  on  the  subject  of 
equitable  averments,  and  particularly  that  laid  down  in  the  cases 
of  The  Rochester  City  Bank  V.  Suydcm,  Wooden  v.  Waffle,  and 
Coit  v.  (y')it,  appears  to  be  unquestionably  preferable';  still  that 
doctrine  must  not  be  carried  too  far.  A  plaintiff  seems,  doubt- 
less, at  liberty  to  state  an  equitable  cause  of  action,  in  substan- 
tially the  same  manner  in  wljich  it  was  formerly  stated  in  a 
well-drawn  bill  in  chancery,  according  to  the  rule  laid  down  in 


PLEADING,  ESSENTIAL  REQUISITES.  323 

Howard  v.  Tiffany;  but  still  he  is  by  no  means  freed  from  the 
observance  of  all  rules  whatever,  in  relation  to  .his  averments  of 
that  cause  of  action;  nor  is  he  at  liberty  to  wander  into  clearly 
irrelevant  matter,  or  to  introduce,  as  forming  part  of  those  aver- 
ments, matters  not  bearing  directly  upon  his  title  to  relief,  but 
merely  useful  as  probative  facts  in  support  of  that  title.  Though 
substantially  preserved  under  the  Code,  the  powers  of  the 
pleader  in  relation  to  equitable  averments,  are  not  increased  by 
it.  They  are,  on  the  contrary,  lessened  in  many  respects,  inas- 
much as  the  abolition  of  equitable  pleading,  as  a  means  of  ob- 
taining discovery,  of  necessity,  narrows  the  field  of  admissible 
allegations,  and  confines  them  simply  to  those,  directly  going  to 
establish  a  cause  of  action,  or  a  right  to  relief  connected  with 
that  cause. 

That  the  substantive  facts  of  the  case,  and  those  only,  form 
the  only  proper  subject  of  averment,  in  all  pleading  whatever, 
and  especially  in  pleadings  under  the  peculiar  provisions  of  the 
Code;  and  that  merely  collateral  or  probative  circumstances, 
not  directly  tending  to  establish  the  cause  of  action,  in  common 
law  cases,  or  to  bear  upon  or  modify  the  relief  to  be  granted, 
where  that  relief  is  equitable  or  special,  are  inadmissible  in  all 
cases  whatever,  whether  legal  or  equitable ;  is  a  leading  feature 
in  every  decided  case  upon  the  subject,  whether  taking  the 
stricter  or  the  more  liberal  view  of  the  general  question. 

In  Boyce  v.  Brown,  7  Barb.  80,  3  How.  391,  cited  at  the  out- 
set of  these  observations,  the  above  doctrine  is  broadly  stated. 
That  "  issuable  facts,  essential  to  the  cause  of  action  or  defence, 
and  not  the  facts  or  circumstances  which  go  to  establish  such 
essential  facts;"  that  "facts  only,  and  not  the  mere  evidence  of 
facts,"  should  be  stated  ;  are  the  principles  laid  down  in  Shaw 
v.  Jayne,  4  How.  119,  2  C.  E.  69,  and  Knowles  v.  Gee,  4  How. 
317.  In  the  case  of  Williams  v.  Hayes,  5  How.  470,  1  C.  E. 
(N.  S.)  148,  the  same  views,  especially  as  they  are  laid  'down 
in  Knowles  v.  Gee,  are  fully  concurred  in  ;  and  the  authority  of 
the  last  case  is  fully  confirmed  by  The  Rensselaer  and  Washing- 
ton Plank  Road  Co.  v.  Wetsel,  6  How.  68  ;  and  Stewart  v.  Bote, 
ton,  6  How.  71,  9  L.  0.  353,  1  C.  E.  (N.  S.)  404.  In  Howard  y 
Tiffany,  3  Sandf.  695,  1  C.  E.  (N.  S.)  99,  before  cited  as  one  of 
the  strongest  cases  in  favor  of  the  liberal  doctrine  of  averment, 
the  same  view  is  adopted,  and  statements  of  probative  circum- 
stances were  ordered  to  be  stricken  out.     The  same  principles 


324  PLEADING,  ESSENTIAL  REQUISITES. 

are  distinctly  stated  in  Milliken  v.  Carey,  5  How.  272 ;  3C.  E. 
250  ;  Floyd  v.  Dearborn,  2  C.  E.  17  ;  Ingersoll  v.  Ingersoll,  1 
C.  R.  102  ;  Dollner  v.  Gibson,  3  C.  R.  153 ;  9  L.  O.  77,  (which, 
on  this  point,  is  perfectly  in  accordance  with  the  other  deci- 
sion ;)  Russell  v.  Chpp,  -4  How.  347 ;  7  Barb.  482;  3  C.  R.  64; 
Glenny  v.  Hitchins,  4  How.  98,  2  C.  R.  56  ;  Lewis  v.  Kendall,  6 
How.  59  ;  1  C.  R.  (N.  S.)  402 ;  Wooden y.  Waffle,  6  How.  145 ; 
1  C.  R,  (N.  S.)  392 ;  Stone  v.  De  Puga,  4  Sandff  681 ;  Stoddard  v. 
Onondaga  Annual  Conference,  12  Barb.  573  ;  Harlow  v.  Hamilton, 
6  How.  475;  Leconte  v.  Jerome,  11  L.  0.  126.  See  per  contra, 
Warren  v.  Struller,  11  L.  0.  94.  This  decision  proceeds  however 
on  peculiar  and  special  grounds,  and  does  not  go  to  the  length 
of  shaking  the  general  principle  as  above  stated.  There  are, 
besides  the  above,  numerous  other  authorities,  in  which  the 
principle  either  appears  in  direct  terms,  or  is  collaterally  re- 
ferred to,  or  acted  upon. 

A  similar  question  has  been  raised,  as  to  whether,  in  cases 
where  the  defendant  is  arrestable,  allegations  of  fraud,  on  which 
to  ground  an  execution  against  the  person,  ought  or  ought  not 
to  be  inserted  in  the  complaint ;  and  much  discussion  has  arisen 
on  the  subject.  The  cases  in  favor  of,  and  against  the  admissi- 
bility of  such  allegations,  are  very  nicely  balanced.  The  pre- 
vailing opinion  would  seem  to  be,  that  such  allegations  are 
admissible,  if  going  to  the  cause  of  action  itself,  and  stated  in  a 
direct  and  not  a  probative  form,  so  as  to  present  a  distinct 
issue,  without  wandering  into  collateral  circumstances.  See 
this  point  fully  considered  heretofore,  under  the  head  of  Ar- 
rest. 

Hypothetical  Pleading."] — Hypothetical  pleading  is  also  clearly 
bad.  Facts,  when  pleaded,  must  be  pleaded  directly  and  to  the 
point,,  and  neither  hypothetically  nor  alternatively.  This  is  so 
clear  a  point,  that  it  seems  almost  unnecessary  to  cite  author- 
ities on  the  .subject.  MrMnrnt;/  v.  Gifford,  5  How.  14;  Sayles 
v.  Wooden^  8  Sow.  84:  1  (J.  R.  (N.  S.)  L09  ;  Porter  v.  McCreedy, 
1  c.  I:.  (N.  S.)88;  and  Lewis  v.  Kendal^  <i  How.  59,  1  C.  R. 
(N.  S.)  102;  an;  decisions  directly  in  point.  In  Boy ce  v.  Brown, 
:;  Eow.  891,  affirmed  7  Barb.  80,  the  law  is  also  laid  down  in 

Lllar  terms,  and  an  :iiiswcr  held  to  !>'•  bad,  as  being,  amongst 
many  other  objections,  hypothetical.  See,  also,  Williams  v. 
Eayt  .  '■>  H"w.  170;    I  (J.    It.  (N.  S.)  148;  Arthur  v.  Brooks,  14 


PLEADING,  ESSENTIAL  REQUISITES.  325 

Barb.  533 ;  Clark  v.  Harwood,  8  How.  470 ;  Gould  v.  Williams, 
9  How.  51.  See  likewise  numerous  cases  cited  below,  under 
the  head  of  Answer,  in  relation  to  the  defences  admissible  in 
cases  of  libel. 

General  Remarks.'] — The  above  remarks  sum  up  that  portion 
of  the  general  consideration  of  essentials  in  pleading,  which 
treats  of  averments,  inadmissible  in  their  nature,  and  therefore 
proper  to  be  stricken  out  on  the  ground  of  their  irrelevancy  or 
redundancy.  The  particular  considerations  on  this  subject,  in 
relation  to  each  pleading  separately  viewed,  will  be  treated  of 
hereafter.  The  remedies  of  the  party  aggrieved,  in  this  respect, 
are  either  by  a  motion  to  strike  out  the  redundant  portions 
under  sec.  160 ;  or,  as  regards  defensive  pleadings,  by  an  appli- 
cation for  judgment,  under  sec.  152,  or  sec.  247,  if  such  plead- 
ing be  wholly  irrelevant  or  frivolous ;  subjects  which  will  be 
severally  considered  hereafter. 

Insufficiency. ,] — The  grounds  of  redundant,  or  mistaken  aver- 
ments, are,  however,  not  the  only  ones  on  which  pleadings, 
generally  considered,  may  be  impeached ;  insufficiency  is,  on 
the  other  hand,  an  objection  equally  fatal,  or  even  still  more  so, 
and  one  which  may,  moreover,  be  taken  at  any  stage  of  the 
action.  Under  this  classification  may  be  placed  the  averment 
of  a  bare  legal  conclusion,  unsupported  by  any  statement  of 
facts  whatever,  as  before  noticed ;  but  the  more  common  form 
of  defect  is  the  omission  to  state  facts  sufficient  to  constitute  a 
cause  of  action,  or  a  valid  ground  of  defence. 

On  this  subject,  it  is  more  difficult  to  lay  down  any  rules  of 
universal  application  ;  every  case  must,  in  fact,  depend  upon  its 
own  circumstances,  and  each  step  in  pleading  has  its  own  pecu- 
liar rules  as  to  sufficiency  or  insufficiency.  These  questions 
will  therefore  be  more  conveniently  considered,  as  applicable  to 
each  distinct  stage  in  the  pleadings  themselves,  and  especially 
under  the  head  of  Demurrer,  the  proper  medium,  in  all  cases, 
for  the  taking  of  objections  of  this  nature. 

§  110.   Observations  in  Conclusion. 

Before  quitting,  however,  the  subject  of  the  essential,  and 
entering  upon  that  of  the  formal  requisites  of  pleadings,  gene- 


326  PLEADING,  ESSENTIAL  REQUISITES. 

rally  considered,  one  or  two  general  remarks,  in  the  nature 
rather  of  cautions  than  of  rules  of  practice,  seem  expedient. 

In  any  pleading  whatsoever,  no  greater  mistake  can  be  com- 
mitted, than  to  aver  too  much ;  or,  in  fact,  to  aver  more  than  is 
absolutely  necessary,  for  the  purpose  of  establishing,  either  the 
cause  of  action,  or  ground  of  defence. 

Every  known "  circumstance  of  the  case  must,  of  course,  be 
well  and  maturely  weighed  at  the  outset.  No  more  dangerous 
error  can,  in  fact,  be  committed  than  to  defer  a  complete  inves- 
tigation in  this  respect,  until  the  cause  approaches  a  hearing. 
The  probable  defence,  or  probable  reply,  to  be  put  in,  must  be 
realized  in  the  mind  of  the  pleader,  whilst  framing  his  original 
statements,  as  far  as  practicable,  and  his  case  shaped  accord- 
ingly. 

The  insertion  of  conjectural  allegations  is,  however,  on  the 
other  hand,  a  most  perilous  course,  and  one  to  be  avoided, 
under  almost  every  possible  state  of  circumstances,  both  as  afford- 
ing evidence  of  a  sense  of  weakness,  and  also  as  calculated  to 
suggest  the  taking  of  objections  that  might  otherwise  have 
escaped  notice.  The  grand  object  in  all  pleadings,  should  be 
to  state  exactly  enough  to  maintain  the  party's  own  case,  and 
to  furnish  a  ground  for  the  introduction  of  the  evidence  by 
which  it  is  proposed  to  be  established ;  to  state  every  thing  ne- 
cessary for  these  purposes,  and  to  state  not  one  word,  not  one 
syllable  more.  Every  unnecessary  allegation,  however  appa- 
rently trivial,  gives,  pro  tanto,  an  advantage  to  the  adversary. 
In  every  case,  too,  whilst  alleging  the  necessary  facts,  care  must 
be  taken  to  allege  them,  or  rather  to  allege  the  conclusion 
founded  upon  them,  in  such  general  terms  as  to  afford  ground 
for  the  introduction  of  every  species  of  evidence  whatever, 
either  direct  or  collateral,  which  may  possibly  bear  upon  the 
issue  to  be  tried.  The  judicious  employment  of  terms,  and 
even  the  substitution  of  one  word  for  another,  of  almost  the 
same  general  import,  may  often  accomplish  this,  and  may  per- 
haps Lead  to  the  most  important  ultimate  results. 

Another  general  consideration,  or  rather  general  caution,  and 
that,  a  cant  ion  not  applicable  to  pleading  alone,  but  to  every 
proceeding  in  a  cause,  from  its  outset  to  its  close,  is  this,  i.e., 
that  wherever  the  relief  claimed,  or  the  statement  adapted  to 
the  demand  of  that  relief,  is  grounded  upon  any  special  statu- 
tory provision,  either  as  contained  in  the  Code  itself,  or  in  any 


PLEADING,  FORMAL  REQUISITES.  327 

other  measure,  the  exact  words  of  the  provision  acted  upon 
should,  in  every  case,  be  followed,  and  the  statutory  provision 
specially  referred  to ;  although  possibly,  in  many,  the  sentence 
might  seem  to  have  a  better  turn,  if  some  slight  deviation  were 
made  in  the  phraseology.  If  the  actual  words  of  the  statute 
are  departed  from,  the  party  so  framing  his  pleading  or  pro- 
ceeding, can  never  be  certain  but  that  the  ingenuity  of  his 
adversary  may  detect,  and  when  detected,  may  avail  himself 
of  some  latent  irregularity  or  latent  defect  in  his  mode  of  state- 
ment ;  but,  if  those  words  be  strictly  followed,  his  proceedings 
must  at  least  be  regular  in  form,  and,  if  he  fail  in  success,  it 
will  not  be  through  any  omission  of  his  own  in  that  respect.  To 
the  judge,  too,  before  whom  the  matter  is  to  come,  a  rigorous 
compliance  with  this  rule  cannot  but  be  highly  acceptable, 
because  it  relieves  him  from  the  necessity  of  an  extra  consider- 
ation of  the  subject,  and  also  from  the  liability  of  having  his 
time  wasted,  and  his  attention  distracted,  with  minor  and  tech- 
nical points,  wholly  unconnected  with  the  real  merits  of  the 
controversy.  See  the  case  of  Schroeppell  v.  Corning,  2  Comst. 
132,  decided  in  accordance  with  these  views. 


CHAPTER    II. 

OF  THE  FORMAL   REQUISITES  OF  PLEADING. 


§  111.  Numbering  Folios,  <$fc. 

All  pleadings,  or  copies  of  pleadings,  of  whatever  nature,  are 
required,  by  Rule  41  of  the  Supreme  Court,  to  be  fairly  and 
legibly  written,  and,  where  exceeding  two  folios  in  length,  they 
must  have  the  folios  distinctly  marked  in  the  margin.  A  strict 
compliance  with  this  rule  seems  to  be  very  generally  dispensed 
with,  but  still  the  rule  exists,  and,  as  it  may  at  any  moment,  or 
on  any  occasion,  be  enforced,  the  only  perfectly  safe  course  will 
be  a  literal  compliance  with  it  on  all  occasions. 

The  courts  regard,  however,  an  objection  of  this  nature  with 
little  favor.     Thus,  in  Sawyer  v.  Schoonmaker,  8  How.  198,  a 


328  PLEADING,  FORMAL  REQUISITES. 

motion  on  this  ground  was  denied,  with  costs,  the  papers  of  the 
moving  party  being  obnoxious  to  the  same  objection.  The 
name  and  residence  of  the  attorney,  or  party  prosecuting  in 
person,  must  also  be  endorsed  on  any  copies  served.  See  Eule  5. 

Numbering  Causes  of  Action,  cfrc] — By  rule  87,  inserted  on  the 
last  revision,  it  is  provided,  that  "In  all  cases  of  more  than  one 
distinct  cause  of  action,  defence,  counter-claim,  or  reply,  the 
same  shall  not  only  be  separately  stated,  but  plainly  num- 
bered." 

An  omission  to  comply  with  this  rule  will  clearly  be  an 
irregularity.  See  Getty  v.  Hudson  River  Railroad  Company,  8 
How.  177  ;  Blanchard  v.  Strait,  8  How.  83 ;  Benedict  v.  Bake,  6 
How.  352 ;  Lippincott  v.  Goodwin,  8  How.  242 ;  White  v.  Low, 
7  Barb.  204 ;  Spencer  v.  Wheehch,  11  L.  0.  329  ;  Burlcee  v.  Sara- 
toga and  Washington  Railroad  Company,  4  How.  226 ;  Pike  v. 
Van  Worner,  5  How.  171.  See  this  subject  hereafter  consi- 
dered under  the  different  heads  of  Pleading.  It  seems,  how- 
ever, that  this  provision  is  only  imperative  in  relation  to  a  de- 
fence, in  those  cases  where  that  defence  consists  of  new  matter, 
and  not  to  an  answer,  merely  denying  the  plaintiffs  allegations. 
Otis  v.  Ross,  8  How.  193  ;  11  L.  0.  343. 

In  Blanchard  v.  Strait,  above  cited,  it  was  considered  that  an 
omission  in  this  respect  might  constitute  a  ground  for  setting 
a  complaint  aside.  In  Wood  v.  Anthony,  however,  9  How.  78, 
this  position  is  denied,  and  it  is  held  that  a  motion  on  the 
ground  of  uncertainty  is  the  proper  course  under  these  circum- 
stances, and  that  the  court  will  not  grant  relief  beyond  that 
extent ;  and  an  application  to  set  aside  was  accordingly  denied, 
with  costs. 

§  112.    Subscription  and  Verification. 

Subscription.'] — The  first  requisite  essential  in  every  pleading, 
LB  that  of  subscription  by  the  party  or  by  his  attorney — sec.  156. 
Tin  iarv  in  all  cases,  and  can  never  be  dispensed  with. 

In  practice,  the  attorney  almost  universally  subscribes,  even 
when  the  pleading  is  verified  by  the  party.  In  JIubhell  v. 
Living.  ><m ,  1  (J.  \l.  63,  the  signature  to  the  affidavit  of  verifica- 
tion was  held  to  be  a  sufficient  subscription  to  the  pleading, 
though  of  course  this  ea.se  is  one  of  those  which  arc  calculated 


PLEADING,   FORMAL  REQUISITES.  329 

to  serve  as  a  caution,  and  not  as  a  precedent.  In  Post  v. 
Coleman,  9  How.  64,  a  similar  subscription  to  a  confession  of 
judgment,  was  held  to  be  a  sufficient  compliance  with  the 
statute. 

Verification,  generally  considered.'] — The  next  essential  form, 
with  regard  to  pleadings  in  general,  is  that  of  verification,  as  to 
which  the  Code  provides  as  follows : 

§  157.  The  verification  must  be  to  the  effect,  that  the  same  is  true 
to  the  knowledge  of  the  person  making  it,  except  as  to  those  matters 
stated  on  information  and  belief,  and  as  to  those  matters  he  believes  it 
to  be  true :  and  must  be  by  the  affidavit  of  the  party,  or  if  there  be 
several  parties  united  in  interest,  and  pleading  together,  by  one  at 
least  of  such  parties  acquainted  with  the  facts,  if  such  party  be  within 
the  county  where  the  attorney  resides,  and  capable  of  making  the  affi- 
davit. The  affidavit  may  also  be  made  by  the  agent  or  attorney,  if  the 
action  or  defence  be  founded  upon  a  written  instrument  for  the  payment 
of  money  only,  and  such  instrument  be  in  the  possession  of  the  agent 
or  attorney,  or  if  all  the  material  allegations  of  the  pleading  be  within 
the  personal  knowledge  of  the  agent  or  attorney.  When  the  pleading 
is  verified  by  any  other  person  than  the  party,  he  shall  set  forth  in  the 
affidavit  his  knowledge,  or  the  grounds  of  his  belief  on  the  subject,  and 
the  reasons  why  it  is  not  made  by  the  party.  When  a  corporation  is  a 
party,  the  verification  may  be  made  by  any  officer  thereof;  and  when 
the  State,  or  any  officer  thereof  in  its  behalf  is  a  party,  the  verification 
may  be  made  by  any  person  acquainted  with  the  facts.  The  verifica- 
tion may  be  omitted,  when  an  admission  of  the  truth  of  the  allegation 
might  subject  the  party  to  prosecution  for  felony.  And  no  pleading 
can  be  used  in  a  criminal  prosecution  against  the  party,  as  proof  of  a 
fact  admitted  or  alleged  in  such  pleading. 

This  section  was  extensively  amended  on  the  revision  of 
1851,  especially  with  reference  to  the  powers  given  to  agents  or 
attorneys  to  verify,  instead  of  their  principals,  in  cases  where 
all  the  facts  are  within  the  personal  knowledge  of  the  former. 
The  provisions  as  to  the  omission  of  verification  in  certain 
cases,  in  the  two  last  clauses,  are  new  also,  having  been  omitted 
in  the  Code  of  1849,  though  that  of  1848  contained  a  clause  to 
that  effect.  This  last  amendment  is  in  accordance  with  the 
doctrine  laid  down  in  the  cases  of  Clapper  v.  Fitzpatrick,  1  C.  K. 
69,  3  How.  314;  Hill  v.  Midler,  2  Sandf.  684;  8  L.  0.  90;  Bailey 
v.  Dean,  5  Barb.  297  ;  and  White  v.  Cummings,  3  Sandf.  716 ;  1 
C.  E.  (N.  S.)  107.     This  principle  was  extended  to  the  case  of 


330  PLEADING,  FORMAL  REQUISITES. 

a  party,  who,  in  lieu  of  verifying  his  answer,  made  an  affidavit 
that  an  admission  of  the  truth  of  its  allegations  might  subject 
him  to  a  prosecution  for  felony  ;  and  an  answer,  put  in  without 
verification,  but  accompanied  by  that  affidavit,  was  held  to  be 
sufficient,  in  Spring sted  v.  Robinson,  8  How.  41.  See,  likewise, 
to  the  same  effect,  Thomas  v.  Harrop,  7  How.  57. 

Not  Imperative.'] — It  must  be  observed,  however,  with  respect 
to  verification,  that  it  lies  in  the  option  of  the  plaintiff,  as  to 
whether  it  shall  or  shall  not  be  made  a  requisite  throughout  the 
suit.  Under  the  Code  of  1848  it  was  otherwise,  every  pleading 
under  that  measure  being  obliged  to  be  verified.  See  Swift  v. 
Hosmer,  1  C.  R.  26 ;  6  L.  0.  317.  Under  the  present  measure, 
or  that  of  1849,  if  the  complaint  be  without  oath,  the  answer 
may  be  put  in  in  the  same  form.  It  is  only  when  any  one  plead- 
ing is  verified,  that  the  verification  of  all  subsequent  ones, 
except  demurrers,  becomes  incumbent  under  sec.  156.  It  is 
hardly,  however,  possible  to  conceive  a  case  in  which  the  adop- 
tion of  this  precaution  by  the  plaintiff,  in  the  first  instance,  will 
not  be  most  essential ;  and,  therefore,  as  a  general  rule,  it  should 
never  be  omitted.  Such  omission  will  completely  deprive  him 
of  the  benefit  of  binding  down  the  defendant  to  the  assertion 
of  a  true,  as  well  as  of  a  sufficient  ground  of  defence,  and  it  will 
leave  the  latter  at  full  liberty  to  make  any  allegation  he  may 
choose,  and  thus  throw  upon  his  adversary  the  duty  of  proving 
facts,  which,  in  a  verified  pleading,  it  would  be  impossible  for 
him  to  deny.  See  George  v.  McAvoy,  1  C.  R.  (N.  S.)  318 ;  6  How. 
200.  It  was  also  held  in  that  case,  that  the  verification,  in 
strictness,  forms  no  part  of  the  pleading  itself. 

Although,  however,  the  plaintiff  may  omit  to  verify  his  com- 
plaint, the  defendant  may  force  him  to  do  so  with  regard  to  his 
reply,  by  putting  in  a  verified  answer.  Levi  v.  JaJceways,  4 
How.  120;  2  C.  R.  69,  reported  as  Lin  v.  Jaquays,  2  C.  R.  29. 

A  pleading  must  not  be  verified  before  the  attorney  of  the 
party,  [f  BO,  it  will  be  a  nullity,  and  may  be  set  aside  on 
motion,  if  made  in  due  time.  Qilmore  v.  Hempstead,  4  How. 
153;  Arum.,  4  flow.  290. 

Verification  by  Party."]  Under  the  Code  of  1849,  the  most 
literal  compliance  with  the  wording  of  the  section  correspondent 
with  that  now  under  consideration,  was  absolutely  essential. 


PLEADING,  FORMAL  REQUISITES.  331 

Thus,  a  verification  to  the  effect  that  the  party  "had  read  the 
complaint,  and  that  the  same  was  true  according  to  the  best  of 
his  knowledge  and  belief,"  was  held  to  be  bad,  in  Van  Home  v. 
Montgomery,  5  How.  238 ;  and,  in  Davis  v.  Potter,  4  How.  155 ; 
2  C.  E.  99,  it  was  even  considered  that  the  use  of  the  word 
"and,"  instead  of  "or,"  between  the  words  "information"  and 
"belief,"  constituted  a  defect.  Although,  perhaps,  the  words 
"to  the  effect,"  in  the  present  amendment,  may  give  a  little 
wider  latitude  in  cases  of  evident  mistake,  a  strict  and  literal 
compliance  with  the  essentials  prescribed  by  the  section  as  it 
now  stands,  is,  in  reality,  indispensable  to  be  attended  to  under 
the  present  measure.  A  very  strict  view  as  to  the  necessity  of 
following  the  exact  words  of  the  Code,  in  a  substantive  allega- 
tion to  the  same  effect  as  the  ordinary  verification,  was  taken  in 
the  recent  case  of  Mott  v.  Burnett,  1  C.  R.  (N.  S.)  225. 

Since  that  amendment,  however,  a  greater  latitude  of  expres- 
sion is  sanctioned,  provided  the  essentials  of  the  provision  be 
complied  with;  the  criterion  being,  that,  if  the  truth  of  the 
pleading  be  positively  sworn  to,  the  minor  incidents  of  the  oath 
become  unimportant.  Thus  in  Southworih  v.  Curtis,  6  How. 
271,  1  C.  E.  (N.  S.)  412,  the  plaintiff's  affidavit  that  the  com- 
plaint was  true,  but  omitting  the  words  "  to  his  knowledge," 
was  held  to  be  a  sufficient  verification. 

So,  also,  in  Kinlcaid  v.  Kipjp,  1  Duer,  692,  11  L.  O.  313,  an 
affidavit  that  the  answer  was  true  to  the  defendant's  knowledge, 
omitting  the  rest  of  the  form,  was  held  to  be  good. 

It  would  seem  from  the  case  of  Finnerty  v.  Barker,  7  L.  O. 
316,  that  a  pleading  may  be  verified  on  belief,  or  information 
and  belief  only,  in  a  case  where  none  of  the  facts  pleaded  are 
within  the  personal  knowledge  of  the  party  himself:  as  slan- 
der, for  instance,  the  matter  there  in  question. 

Where,  however,  the  truth  of  the  pleading  is  alleged,  that 
allegation  must  not  be  otherwise  qualified  than  as  permitted  by 
the  form  prescribed.  Thus,  a  verification  by  the  plaintiff,  that 
the  complaint  was  substantially  true,  of  his  own  knowledge,  was 
held  to  be  bad,  and  the  defendants  entitled  to  put  in  an  unveri- 
fied answer.    Waggoner  v.  Brown,  8  How.  212. 

In  Truscott  v.  Bole,  7  How.  221,  it  was  held  that  the  above 
form  of  affidavit  does  not  necessarily  imply,  that  the  mode  in 
which  the  matters  are  stated  appears  on  the  complaint,  and, 
therefore,  that  all  allegations  in  the  latter  should  be  made  posi- 


332  PLEADING,  FORMAL  REQUISITES. 

tively.  The  effect  and  true  construction  of  the  oath  is,  that  so 
far  as  those  matters  are  within  the  knowledge  of  the  party,  they 
are  true,  and,  as  to  the  residue,  he  is  either  informed  or  believes 
them  to  be  true.  The  same  conclusion  is  come  to  in  Hackett  v. 
Richards,  11  L.  0.  315. 

A  pleading  may,  as  above  provided,  be  verified  by  any  one 
of  several  parties  united  in  interest  and  pleading  together. 
Where,  however,  their  interests  are  severable,  the  reverse  will  be 
the  case.  Thus  in  Andrews  v.  Storms,  5  Sandf.  609,  it  was  held 
that  the  joint  answer  of  the  maker  and  endorser  of  a  note,  veri- 
fied by  the  maker  only,  was  bad  as  regarded  the  endorser,  and, 
so  far  as  respected  his  defence,  it  was  stricken  out. 

A  joint  answer,  put  in  by  defendants,  severally  as  well  as 
jointly  liable,  must  be  verified  by  all  of  them,  or  it  will  be  held 
no  answer,  as  regards  those  defendants  who  omit  to  do  so. 
Alfred  v.  Wathms,  1  C.  R  (K  S.)  343. 

An  amended  complaint  has  been  held  not  to  be  a  "  subse- 
quent pleading"  within  the  meaning  of  the  foregoing  provisions, 
and,  therefore,  not  necessary  to  be  Verified,  though  the  amend- 
ment took  place  after  a  verified  answer.  Hempstead  v.  Hemp- 
stead, 7  How.  8. 

The  court,  in  Bragg  v.  Bickford,  4  How;  21,  allowed  a  plead- 
ing to  be  verified  after  it  had  actually  been  served,  upon  good 
cause  shown ;  though,  of  course,  this  case,  like  all  of  the  same 
nature,  must  not  be  drawn  into  a  precedent  for  neglect  in  the 
first  instance.  See,  however,  George  v.  McAvoy,  6  How. "$00; 
1  C.  R.  (N.  S.)  318,  above  cited.  ~ 

The  omission  of  the  party's  signature  to  the  affidavit  of  veri- 
fication, will  render  the  pleading  altogether  defective.  Laimh<<  r 
v.  Allen,  2  Sandf.  648 ;  2  C.  R.  15. 

So,  also,  the  omission  of  the  statement  of  venue,  where  that 
'i(1i<l;r,  it  is  taken  before  a  commissioner  of  deeds.  Lane  v.  Morse, 
6  Bow.  804. 

On  '  rvice  of  the  copy  of  a  pleading,  a  correct  copy  of  the 
affidavit  of  verification  must  be  added.  Any  omission  in  this 
and  particularly  the  omission  of  the  name  of  the  officer 
before  whom  such  pleading  is  sworn,  will  entitle  the  opposite 
part}  to  fcreal  th<  Bervice  as  a  nullity.  Gfrahamv.McCoun,  5 
Now.  868;  I  0.  R.  (N.  S.)  48.  See  also  Georgi  v.  McAvoy,  6 
Bow.  1j!<><>;  1  0.  li.  (N.  S.)  818,  above  cited.  The  omission  of 
theoffic  lature  itself  will,  of  course,  be  a  fatal  objection. 


PLEADING,  FORMAL  REQUISITES.  333 

In  HiUv.  Theater,  3  How.  407,  2  C.  E.  3,  it  seems  to  have 
been  considered  that  the  guardian  of  an  infant  might  properly 
verify  the  complaint,  in  an  action  brought  in  his  name. 

Verification  by  Attorney.'] — A  greater  latitude  is,  as  before 
observed,  given  by  the  recent  amendments,  in  relation  to  the 
verification  of  pleadings  by  the  agent  or  attorney.  It  is,  how- 
ever, absolutely  essential  that  the  reasons  why  the  affidavit  is 
not  made  by  the  party  should  be  set  out,  on  verification  by  the 
attorney  or  agent ;  if  omitted,  that  verification  will  be  a  nul- 
lity. Fitch  v.  Bigelow,  5  How.  237  ;  3  C.  E.  216.  See  also  Webb 
v.  Clark,  2  Sandf.  647 ;  2  C.  E.  16. 

In  Dixwell  v.  Wordsworth,  2  C.  E.  1,  a  verification  by  an 
attorney,  to  the  effect  that  the  party  was  absent  from  the  county, 
and  that  "from  the  information  furnished  this  deponent  by  said 
defendant,  and  from  his  representations,  (which  are  the  grounds 
of  this  deponent's  knowledge  and  belief  in  the  matter,)  he 
believes  the  foregoing  answer  to  be  true,"  was  sustained  by 
the  court. 

This  case  was  prior  to  the  recent  amendments  of  the  section, 
by  which  the  powers  of  the  attorney  to  verify,  instead  of  the 
party,  are  greatly  enlarged.  There  is  some  little  ambiguity  in 
the  provision,  as  it  stands,  unexplained,  with  reference  to  the 
attorney's  power  to  verify  in  the  absence  of  the  party,  and  for 
that  sole  reason ;  but  that  ambiguity  is  fast  clearing  up,  under 
the  interpretation  that  has  been  given  to  these  provisions. 

In  Hunt  v.  Meacham,  6  How.  400,  it  was  at  first  held  that, 
although  the  defendants  were  absent  from  the  State,  the  verifi- 
cation of  the  attorney,  stating  his  knowledge  to  be  solely  de- 
rived from  the  statements  of  his  clients,  was  insufficient,  because 
the  statements  were  not  derived  from  his  own  personal  know- 
ledge, or  from  an  instrument  in  his  possession. 

Where,  however,  either  of  these  latter  conditions  is  fulfilled, 
the  verification  will  be  good  without  a  question.  Mason  v. 
Brown,  6  How.  481. 

The  doctrine  as  laid  down  in  Hunt  v.  Meacham,  seems,  how- 
ever, to  be  too  restricted,  and  has  not  been  sustained.  In  Stannard 
v.  Mattice,  7  How.  4,  it  was  held  that,  where  a  party  is  not  within 
the  county  in  which  the  attorney  resides,  the  latter  may  verify, 
though  in  the  absence  of.  a  written  instrument,  or  of  his  own 
personal  knowledge.    "  The  intention  is,  that  the  pleading  shall 


334  PLEADING,  FORMAL  REQUISITES. 

be  verified  by  the  party,  if  within  the  county  where  the  attor- 
ney resides.  If  not,  it  may  be  verified  by  the  attorney.  It 
may  also  be  verified  by  the  attorney,  whether  the  party 
is  within  the  county  or  not,  when  it  rests  on  a  written  instru- 
ment in  the  possession  of  the  attorney,  or  when  the  attorney 
has  personal  knowledge  of  all  the  material  allegations  of  the 
pleadings;  and,  in  all  cases,  the  attorney  must  state  in  his 
affidavit  of  verification,  his  knowledge  or  the  grounds  of  his 
belief,  and  the  reason  why  it  is  not  made  by  the  party."  This 
conclusion  is  supported  in  Roscoe  v.  Maison,  7  How.  121,  it 
being  held  that  the  absence  of  the  part}'  from  the  county  is,  in 
itself,  a  sufficient  reason.  In  Lefevre  v.  Latson,  5  Sandf.  650,  10 
L.  0.  246,  the  above  views,  as  laid  down  in  Stannard  v.  Mattice, 
are  supported  to  the  full  extent ;  and  the  doctrine  as  laid  down 
in  Hunt  v.  Meacham  is  disapproved  of  in  both  cases. 

In  the  Appendix  various  forms  of  verification  will  be  found, 
adapted  to  the  different  states  of  circumstances  likely  to  arise 
under  the  present  provisions. 

Ho w  Answer  sworn  to  out  of  State.] — In  relation  to  the  verifi- 
cation of  answers  out  of  the  State,  where  deemed  necessary, 
see  heretofore,  Book  IV.,  sec.  60,  pages  165  and  166,  under 
the  head  of  Affidavits.  The  officers  before  whom  an  answer 
may  be  sworn  to  in  these  cases,  are  there  clearly  pointed  out. 
It  may  also  be  taken  by  commission,  in  the  same  manner  as  the 
evidence  of  witnesses  out  of  the  State,  if  thought  expedient.  See 
hereafter  under  that  head.  It  is  clear,  however,  that,  under 
these  circumstances,  the  attorney  may  now  verify  instead  of  the 
party,  and  such,  therefore,  is  the  course  generally,  if  not  uni- 
versally pursued. 

§    113.    Return  of  defective  Pleading. 

A  pleading,  defective  in  form  in  any  of  the  foregoing,  or 
Other  respects,  should  be  immediately  returned  by  the  opposite 
party,  if  be  retain  it,  he  will  be  held  to  have  waived  the  irre- 
gularity, and  cannot  afterwards  take  advantage  of  it;  Lahnbeer 
v.  Attn/,  2  Sandf.  648;  2  C.  K.  15;  Knickerbocker  v.  Louc/cs,  3 
How.  61  ;  Leviv.Jakeways,  4  How.  126;  2  C.  11.  69;  McGown 
v.  lieavenworthf  '■>  0.  R.  151,  (in  which  a  return  within  the  same 
day  was  held  to  be  a  reasonable  time;)  White  v.  Cummings,  3 
Sandf.  716;  1  C.  B.  (N.  S.)  107;  Williams  v.  Sholto,  4  Sandf. 


PLEADING,  FORMAL  REQUISITES.  335 

641 ;  Sawyer  v.  Schoonmaker,  8  How.  198 ;  and,  even  if  he  re- 
turn the  paper,  he  is  bound,  in  doing  so,  to  point  out  the  nature 
of  the  alleged  defect;  Broadway  Bank  v.  Banforth,  7  How.  264; 
Sawyer  v.  Schoonmaker,  above  cited.  See  likewise,  Rogers  v. 
Rathbun,  8  How.  466 ;  Hollister  v.  Livingston,  9  How.  140. 

Although  a  pleading  not  duly  verified  is,  in  effect  a  nullity, 
(see  Siuift  v.  Hosmer,  6  L.  O.  317,  1  C.  E.  26,)  it  cannot  be  disre- 
garded altogether  as  such  by  the  opposite  party.  The  proper 
course  is  to  move  to  set  it  aside  for  irregularity,  and  such 
motion  must  be  made  on  the  very  first  opportunity  after  the 
service,  or  the  irregularity  will  be  held  to  have  been  waived ; 
Gilmore  v.  Hempstead,  4  How.  153;  Laimbeer  v.  Allen,  and  Gra- 
ham v.  McGoun,  above  cited;  Webb  v.  Clark,  2  Sandf.  647  ;  2  C. 
R.  16.  The  last  case  is  also  authority,  that  an  objection  of  this 
nature  cannot  be  taken  by  way  of  demurrer. 

In  FitcliY.  Bigelow,  5  How.  237,  3  C.  E.  216,  above  cited,  the 
case  of  a  complaint  irregularly  verified,  a  motion  of  this  nature 
was  however  denied,  but  without  costs ;  and  it  was  held  that 
the  proper  course  for  a  defendant  to  pursue  under  such  circum- 
stances, was  to  put  in  his  answer  without  oath,  treating  the 
complaint  as  if  not  verified  at  all.  The  authority  of  this  case 
seems,  however,  to  be  more  than  doubtful,  in  view  of  the  con- 
trary decisions  above  cited. 

§  114.    Other  Formalities. 

The  following  formal  provisions  are  made  by  the  Code,  with 
respect  to  matters  forming  the  subject  of  pleading,  either  offen- 
sive or  defensive. 

The  items  of  an  account  alleged,  need  not  be  set  forth  in  any 
pleading,  but  a  verified  copy  must  be  delivered  to  the  opposite 
party,  if  demanded.     See  sec.  158. 

In  pleading  a  judgment,  or  other  determination  of  a  court 
or  officer  of  special  jurisdiction,  it  is  not  necessary  to  state  the 
facts  conferring  jurisdiction,  but  it  maybe  stated  as  having  been 
duly  made  :  sec.  161.  If  controverted,  however,  by  the  oppo- 
site party,  proof  of  that  jurisdiction  will  then  be  necessary  on 
the  trial.  The  jurisdiction  of  the  United  States  courts  is  in- 
tended, without  being  specially  proved.  Bement  v.  Wisner,  1 
C.  E.  (N.  S.)  143. 

The  due  performance  of  a  condition  precedent,  may  be 


336  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

pleaded  generally,  without  stating  the  facts  which  show  it,  and, 
in  an  action  or  defence  founded  on  an  instrument  for  payment 
of  money  only,  it  is  sufficient  to  give  a  copy  of  the  instrument, 
and  state  the  sum  due  under  it:  sec.  162.  See,  however,  subse- 
quent observations  on  this  clause,  under  the  head  of  Complaint. 

A  reference  to  the  title,  and  date  of  passage  of  a  private 
statute,  is  sufficient  for  the  purposes  of  pleading  it:  sec.  163. 

The  question  of  irrelevant  or  redundant  matter,  and  also  the 
provisions  of  the  Code,  applicable  to  any  one  stage  of  pleading 
exclusively  considered,  will  be  treated  of  hereafter.  The  pro- 
visions of  sec.  168,  under  which,  every  material  allegation,  not 
specifically  controverted  by  the  opposite  party,  is  to  be  taken 
as  true,  are  of  course  most  essential  to  be  attended  to  on  all 
occasions.  The  detailed  consideration  of  this  branch  of  the 
subject  belongs,  however,  more  exclusively  to  the  heads  of 
Answer  and  Keply. 


CHAPTER  III.* 

OF  THE  CORRECTION  OF  PLEADINGS  BY  THE  MOVING  PARTY. 


General  Remarks. 

Although,  in  a  great  measure,  this  branch  of  the  subject  is 
of  special  application,  still  many  considerations  of  a  general 
nature  arise  out  of  it,  and  will,  therefore,  be  so  considered. 

Pleadings  may  be  corrected  either, 

1.  By  amendment,  as  of  course. 

2.  By  amendment,  on  leave  obtained  from  the  court. 

:;.  By  the  striking  out  of  improper  matter,  on  the  application 
of  the  adverse  party. 

These  three  subjects  will,  accordingly,  be  successively  con- 
iv. 1;  the  two  first  in  the  present,  the  last  in  the  succeeding 
chapter. 

§  L15.  Amendments  (ts  of  Course. 

Statutory  Provi  ion."]  The  provision  of  the  Code  on  the  sub- 
ject of  amendments  as  of  coarse,  is  as  follows: 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  337 

§  172.  Any  pleading-  may  be  once  amended  by  the  party  of  course, 
without  costs,  and  without  prejudice  to  the  proceedings  already  had, 
at  any  time  before  the  period  for  answering  it  expires  ;  or  it  can  be  so 
amended,  at  any  time  within  twenty  days  after  the  service  of  the  answer 
or  demurrer  to  such  pleading ;  unless  it  be  made  to  appear  to  the  court 
that  it  was  done  for  the  purposes  of  delay,  and  the  plaintiff  or  defend- 
ant will  thereby  lose  the  benefit  of  a  circuit  or  term  for  which  the  cause 
is  or  may  be  noticed  :  and,  if  it  appear  to  the  court  that  such  amend- 
ment was  made  for  such  purpose,  the  same  may  be  stricken  out,  and 
such  terms  imposed  as  to  the  court  may  seem  just.  In  such  case  a  copy 
of  the  amended  pleading  must  be  served  on  the  adverse  party. 

Time  allowed.'] — On  the  first  head,  it  will  be  seen  that  twenty 
days  is  the  time  allowed  to  amend  in  all  cases ;  but  the  period 
from  which  this  time  is  to  be  computed  is  variable,  according 
to  the  varying  circumstances  of  each  case.  The  weight  of 
authority  runs  at  present,  that,  in  all  cases  in  which  service  by 
mail  is  admissible,  the  time  allowed  to  amend  is  doubled  in 
practice,  and  the  party  has  forty  days,  instead  of  twenty,  for  that 
purpose.  Washburn  v.  Herrick,  4  How.  15  ;  2  C.  R.  2  ;  Cusson 
v.  Whalon,  5  How.  302 ;  1  C.  R  (N.  S.)  27.  This  conclusion 
seems,  nevertheless,  to  be  somewhat  doubtful ;  although  these 
cases  stand,  for  the  present,  alone  and  uncontradicted.  The 
provisions  as  to  service  by  mail,  occur  in  that  portion  of  the 
Code  more  peculiarly  applicable  to  purely  interlocutory  pro- 
ceedings. The  date  within  which  a  pleading  must  be  served  is, 
in  fact,  "otherwise  provided  for,"  (see  sec.  408,)  and  is  impera- 
tively fixed  by  sections  143  and  153.  Under  the  former,  the 
demurrer  or  answer  must  be  served  within  twenty  days  after 
the  service  of  the  copy  of  the  complaint.  Under  the  latter,  the 
plaintiff  may,  within  twenty  days,  reply  to  new  matter  in  the 
answer.  It  may  well  be  contended,  that  these  positive  limita- 
tions cannot  be  repealed,  by  implication  from  other  provisions, 
not  directly  applicable  to  the  subject  of  pleading,  but  inserted, 
on  the  contrary,  with  peculiar  reference  to  the  ordinary  notices 
in  a  suit,  and  to  the  subject  of  interlocutory  motions  or  other 
applications  during  its  progress.  This  construction  seems  the 
sounder,  and  works,  in  fact,  no  practical  hardship,  because  it  is 
always  in  the  power  of  the  party,  if  he  require  it,  to  obtain 
farther  time  to  plead,  by  means  of  an  application  in  the  ordi- 
nary manner.  It  may  probably  be  held,  however,  that,  if  duly 
posted  within  the  twenty  days,  a  pleading  may  be  served  by 
22 


338  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

mail,  in  cases  where  such  service  is  applicable  ;  and  therefore 
it  would,  perhaps,  be  imprudent  to  enter  up  judgment  by  de- 
fault, on  the  non-receipt  of  an  answer,  until  sufficient  time  has 
been  allowed  for  its  transmission  by  due  course  of  post.  Where, 
too,  the  complaint  has  been  served  by  mail,  it  seems  clear  that 
this  mode  of  service,  with  all  its  incidents,  and,  amongst  others, 
the  extension  of  time,  will  be  applicable  to  the  answer.  See,  in 
affirmance  of  this  view,  Plumb  v.  Whipples,  7  How.  411. 

No  proceeding  whatever  on  the  part  of  his  adversary,  can 
prejudice  the  right  of  a  party  to  amend  within  the  time  allowed 
to  him.  Washburn  v.  Herrick,  above  cited  ;  Dicker  son  v.  Beards- 
ley,  1  C.  E.  37 ;  6  L.  0. 389 ;  Morgan  v.  Leland,  1  C.  E.  123.  See, 
likewise,  Carrie  v.  Baldwin,  4  Sandf.  690;  Cooper  v.  Jones,  4 
Sandf.  699 ;  Griffin  v.  Cohen,  8  How.  451 ;  Rogers  v.  Ratlibun, 
8  How.  466.  That  right  is  absolute,  subject  only  to  the  power 
of  the  court  to  strike  out  for  good  cause  shown.  See,  however, 
the  qualifications  of  this  doctrine  laid  down  in  Plumb  v.  Whip- 
pies,  7  How.  411,  before  cited. 

The  service  of  an  answer  does  not  preclude  the  plaintiff  from 
amending  his  complaint  within  the  time  allowed  him.  Clor  v. 
Mallory,  1  C.  E.  126.  To  a  certain  extent,  the  right  to  amend 
is  a  stay  of  proceedings ;  and,  during  its  continuance,  the  ad- 
verse party,  if  he  proceed  during  that  time,  proceeds  at  his 
peril.  Washburn  v.  Herrick,  above  cited.  Plumb  v.  W hippies,  7 
How.  411.  See,  however,  restrictions  on  the  doctrine  below 
noticed.  Thus,  if  the  plaintiff  take  judgment  within  the  period 
allowed  to  the  defendant  to  amend,  that  judgment  will  be  set 
aside,  if  the  defendant  afterwards  does  so,  and  applies  to  the 
court.  Dicherson  v.  JBeardsley,  1  C.  E.  37  ;  6  L.  0.  389  ;  Morgan 
v.  Leland,  1  C.  E.  123 ;  Griffin  v.  Cohen,  8  How.  451 ;  Sogers  v. 
Eathbun,  8  Hew.  466.  See,  likewise,  Carrie  v.  Baldwin,  4  Sandf. 
690. 

Although  neither  party  will  be  permitted  to  take  judgment, 
except  at  his  peril,  during  the  time  allowed  to  his  adversary  to 
amend  ;  still  the  right  of  the  latter  to  do  so  is  not,  j»r  se,  a  stay 
of  proceedings  for  nil  purposes.  Thus,  the  cause  may  be 
noticed  for  trial  immediately  on  the  service  of  reply,  without 
waiting  until  the  period  within  which  tbedefendant  may  amend 
his  answer   bas  elapsed.     If  the  defi  t   waive  that   right, 

which  he.  may  do,  either  expressly,  or  imself  noticing  the 

cause,  the  plaintiff  will  be  bound  to  pr<   •  •  d.    Cassonv.  Whalon, 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  339 

5  How.  302 ;  ICE.  (N.  S.)  27.  In  Enos  v.  Thomas,  4  How. 
290,  it  was  held,  on  a  similar  principle,  that,  immediately  on 
reply,  the  plaintiff  may  move  to  refer  the  cause,  under  sec.  271, 
without  waiting  till  the  defendant's  time  to  amend  shall  have 
expired.  Of  course,  however,  he  will  do  so,  to  a  certain  degree, 
at  his  peril,  in  the  event  of  an  amended  pleading  being  subse- 
quently served,  by  which  the  subject-matter  of  the  original 
reference  may  undergo  alteration.  The  rights  of  the  party 
entitled  to  amend  are  considerably  restricted,  and  those  of  his 
adversary  enlarged,  by  the  recent  alteration  in  sec.  172 ;  see 
this  subject  noticed  below,  and  the  case  of  Plumb  v.  Whipples, 
there  cited. 

An  amended  pleading  takes  the  place  of  and  supersedes  the 
original,  with  regard  to  the  time  allowed  to  the  opposite  party 
to  amend,  as  well  as  in  other  respects.  Thus,  in  The  Seneca 
County  Bank  v.  Gfarlinghouse,  4  How.  174,  a  plaintiff  was  al- 
lowed to  amend  his  complaint,  in  due  time  after  the  service  of 
an  amended  answer,  although  a  reply  had  even  been  served  by 
him  to  the  defendant's  original  answer  in  the  cause.  The  right 
to  do  so,  involved,  of  course,  a  practical  recommencement  of  the 
pleadings  in  the  cause  ab  initio,  although  issue  had  already  been 
joined  therein,  had  not  the  defendant  subsequently  amended. 

It  would  seem,  therefore,  from  this  case,  and  from  those  of 
Enos  v.  Thomas,  and  Cusson  v.  Whalon,  also  above  cited,  that 
the  defendant  has,  in  all  cases,  the  right  to  amend  his  answer, 
within  twenty  days  after  the  service  of  the  plaintiff's  reply, 
although,  in  the  section,  the  words  "answer  or  demurrer"  only 
appear. 

Of  course,  by  amending  his  complaint,  the  plaintiff  alters  t he- 
period  within  which  the  defendant  must  answer,  and  he  cannot 
take  judgment  with  reference  to  the  date  of  the  original  service. 
Dicker  son  v.  Beardsley,  1  C.  R.  37,  6  L.  0.  389,  above  cited. 

How  and  when  Amendment  admissible.] — Pleadings  in  cases 
transferred  from  a  justice's  court,  under  sec.  60,  have  been,  held 
not  to  be  amendable  at  all ;  but  this  proposition  seems  to  be 
overruled  by  the  more  recent  decisions,  before  cited  under  the 
head  of  the  jurisdiction  of  those  tribunals. 

In  Plumb  v.  Whipple*,  7  How.  411,  it  was  held  that  the 
powers  of  amendment,  conferred  by  sec.  172^  do  not  extend  to 
pleadings  which  do  not  admit  of  an  answer  or  reply,  and  that 


340  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

an  answer  merely  traversing  the  allegations  in  the  complaint, 
and  not  containing  new  matter,  was  not  amendable  at  all. 

Where  an  answer  had  been  stricken  out  as  sham,  it  was  held 
that  the  defendant  had  no  right  to  amend,  and  a  judgment  en- 
tered up  for  want  of  an  answer  was  refused  to  be  vacated. 
Aymar  v.  Chase,  1  C.  R.  (N.  S.)  141. 

An  amended  answer,  the  same  in  its  legal  effect,  though  dif- 
fering in  its  phraseology  from  the  original  one  put  in,  was 
stricken  out  in  /Snyder  v.  White,  6  How.  321.  It  was  held  in 
the  same  case  that,  if  the  time  to  amend,  as  of  course,  be  allowed 
to  elapse,  no  amendment  can  take  place  afterwards  unless  by 
leave  of  the  court. 

In  George  v.  McAvoy,  6  How.  200,  1  C.  R.  (K  S.)  318,  it  was 
held  that  the  verification  is  no  part  of  a  pleading,  and  that, 
therefore,  a  second  copy  of  the  original  complaint,  with  the  veri- 
fication merely  added,  was  no  amended  complaint,  and  might 
be  disregarded.  A  judgment  entered  up  for  want  of  an  answer 
to  the  second  complaint,  the  original  one  having  been  an- 
swered without  oath,  was  accordingly  set  aside. 

Where  the  opposite  party  has  already  given  notice  of  a  mo- 
tion to  set  aside  a  pleading  as  irregular,  his  costs  of  that  motion 
must,  in  all  cases,  be  paid  before  an  amendment  can  be  allowed. 
The  power  to  amend,  as  of  course,  extends  only  to  cases  where 
the  proceedings  have  been  regular,  or  where  the  amendment  is 
made  before  any  steps  have  been  taken  by  the  opposite  party, 
in  consequence  of  the  irregularity  sought  to  be  cured.  Williams 
v.  Wilkinson,  5  How.  357  ;  1  C.  R.  (N.  S.)  20.  See  also  Hall  v. 
Hunil'ij,  1  C.  R.  (N.  S.)  21,  (Note.)  This  principle  is,  however, 
to  some  extent  departed  from,  in  Currie  v.  Baldwin,  4  Sandf. 
690,  where  it  was  held  that,  if  a  party  amend  a  frivolous  de- 
murrer within  due  time,  a  motion  for  judgment  on  the  demurrer, 
as  it  stood,  will  be  denied  without  costs. 

Amendments  must  be  confined  to  matter  in  existence  at  the 
com  :  '-ill  of  the  suit.     Allegations  of  subsequent  occur- 

rences are  irregular,  and  will  be  stricken  out.  The  remedy  in 
such  a  ci  "  i  a  supplemental  pleading.  Hdrnfager  v.  Rornfager, 
6  Eow.  L3,  l  C.  R.  (N.  S.)  LOO. 

An  amendment  which  involves  a  change  of  parties  in  the 
action,  cannot  !  e  made  at  all,  as  of  course,  or  without  the  spe- 
cial leaveofthe  court.  Russell  v.  Spear,  5 How.  142;  3C.  R.  189. 
Nor  can  a  substantially  new  cause  of  action  be  introduced  by 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  341 

amendment,  without  the  express  leave  of  the  court.  Hollister  v. 
Livingston,  9  How.  140 ;  Field  v.  Morse,  8  How.  47. 

An  amendment,  claiming  "equitable"  relief,  in  addition  to 
legal  relief  claimed  by  the  original  complaint,  under  the  same 
state  of  circumstances,  was  held  to  be  regular,  in  Getty  v.  The 
Hudson  River  Railroad  Company,  6  How.  269;  10  L.  0.  85. 

An  order  directing  a  complaint  to  be  amended  in  certain  par- 
ticulars, will  not  preclude  the  plaintiff  from  amending,  as  of 
course,  by  the  inserting  new  and  material  allegations,  provided 
his  time  for  doing  so  has  not  expired.  The  complaint  so 
amended,  must  not,  however,  contain  any  matter  directed  by 
the  order  to  be  stricken  out.  It  seems,  though,  that  when  an 
amended  complaint  has  been  served  in  conformity  with  an 
order,  it  cannot  again  be  amended  without  leave  of  the  court, 
although  the  time  for  amending,  as  of  course,  may  not  have 
expired.     Jeroliman  v.  Cohen,  1  Duer,  029. 

Restrictions  on  power  to  amend.'] — The  provision  at  the  close 
of  the  portion  of  sec.  172,  as  above  cited,  is  new,  and  was  not 
in  the  Code  of  1849.  It  affords  a  valuable  safeguard  against 
the  abuse  of  the  power  to  amend  as  of  course.  The  portion  of 
that  section  which  provides  that  such  an  amendment  shall  not 
be  permitted,  where  made  for'the  purposes  of  delay,  has  come 
up  for  consideration  in  the  following  cases,  decided  since  its  in- 
sertion as  above  noticed. 

The  provision  in  question  was  acted  upon,  and  the  relative 
rights  of  the  opposing  parties  defined,  in  Plumb  v.  Whiptples,  7 
How.  411.  The  plaintiff,  on  service  of  the  answer,  noticed  the 
cause  for  trial,  and  took  an  inquest,  within  the  time  allowed  the 
defendant  to  amend;  which  inquest  the  court  sustained,  both 
because  the  answer  was  in  itself  unamendable,  (see  same  case 
above  noticed,)  and  also  on  the  following  grounds.  After  notic- 
ing the  defendant's  right  to  amend,  the  court  proceeds:  "But 
the  right  so  to  amend  is  not  to  prejudice  the  proceedings  already 
had.  Effect  is  to  be  given  to  this  provision,  and  I  understand 
it  to  have  been  intended  for  a  case  like  this  under  consideration. 
The  plaintiff  had  a  right,  when  the  cause  was  at  issue,  to  notice 
it  for  trial.  If  the  issue  noticed  for  trial  still  remained,  when 
the  time  for  trial  arrived,  then  he  might  try  the  cause,  and,  if 
successful,  perfect  judgment.  None  of  these  proceedings  are 
to  be  prejudiced  by  a  subsequent  amendment,  even  although  it 


342  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

should  be  made  within  the  time  prescribed  by  the  statute.  The 
plaintiff  may  notice  his  cause  for  trial  before  the  time  for  amend- 
ing the  answer  expires.  He  does  so  at  his  peril.  That  peril  is 
the  contingency,  that,  before  he  can  bring  it  to  trial,  the  defend- 
ant may  amend,  and  thus  destroy  the  issue  he  had  intended  to 
try.  On  the  other  hand,  the  defendant  takes  the  time  allowed 
to  him  to  amend,  at  the  peril  of  all  regular  proceedings  which 
may  be  taken  against  him  before  he  amends.  Such  proceedings, 
whatever  they  may  be,  are  not  to  be  prejudiced  by  the  amend- 
ment." 

In  Allen  v.  Compton,  8  How.  251,  the  above  doctrine  is  car- 
ried still  further,  and  it  was  held  that  an  amended  answer, 
served  for  delay,  and  at  so  late  a  period  as  to  throw  the  plain- 
tiff over  the  circuit,  was  a  nullity,  and  might  be  treated  as  such. 
An  inquest  was  taken  in  that  case,  and  the  plaintiff's  attorney 
subsequently  moved  to  strike  out  the  amended  answer,  as  pro- 
vided for  in  sec.  172,  which  motion  was  granted,  and  that  mode 
of  practice  sustained,  and  laid  down  to  be  the  only  mode  the 
plaintiff  could  take  to  save  the  circuit. 

This  latter  conclusion  is  however  denied,  and  it  is  held  that 
an  amended  pleading,  if  served  within  the  proper  time,  cannot, 
under  any  circumstances,  be  disregarded,  in  Griffin  v.  Cohen,  8 
How.  451,  which  lays  down  the  law  as  follows:  "The  right  to 
amend  is  absolute,  subject  only  to  the  power  of  the  court  to 
strike  out  for  good  cause  shown.  If  the  amendment  is  made  in 
good  faith,  and  not  for  the  purpose  of  delay,  it  cannot  be 
stricken  out,  although  the  effect  may  be  to  deprive  the  opposite 
party  of  the  benefit  of  a  circuit  or  term."  The  court  must  first 
pass  upon  the  intent.  The  proper  course  of  practice  is  then 
laid  down  as  follows:  "If  the  amended  pleading  shall  be 
served  during  a  circuit  or  term,  the  court  can,  upon  a  proper 
case  being  made,  require  the  party  amending  to  show  cause,  at 
a  shorl  day,  why  the  amended  pleading  should  not  be  stricken 
Out  -Code,  sec.  402 — or  if,  Tor  any  reason,  this  cannot  be  done 
before  the  adjournment  of  the  circuit,  application  may  be  made 
at  a  special  term;  and,  if  the  case  is  brought  within  the  pro- 
vision authorizing  the  court  to  strike  out,  it  can  be  done,  and 
such  terms  imposed  upon  the  party  thus  attempting  to  avail 
himself  of  the  i  tatute  of  amendments  in  bad  faith,  as  will  pre- 
vent injury  to  the  adverse  party."  An  inquest  taken  in  that 
case  was  thi  el    aside,  under  similar  circumstances  to 


TLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  343 

those  in  Allen  v.  Compton,  except  that  the  defendant,  and  not 
the  plaintiff,  was  the  moving  party  in  this  case. 

In  Rogers  v.  Rathbun,  8  How.  466,  a  similar  view  was  taken 
with  reference  to  an  amended  complaint,  and  a  dismissal  taken 
by  the  defendant,  treating  the  amendment  as  a  nullit}^  set  aside 
in  like  manner.  Griffin  v.  Cohen  is  expressly  referred  to,  and 
it  is  held  that  the  decision  in  Allen  v.  Compton  is  not  necessarily 
inconsistent  with  that  practice.  The  distinction  drawn  is,  that, 
in  the  latter  case,  the  plaintiff  did  not  rely  solely  on  the  inquest, 
but  expressly  moved  to  strike  out  the  answer,  which  gave  the 
defendant  an  opportunity  to  repel  the  charge,  and  explain  the 
suspicious  circumstances. 

The  doctrine  in  Griffin  v.  Cohen,  and  Rogers  v.  Rathbun, 
seems,  on  examination,  to  be  preferable.  The  inquest  taken  in 
Allen  v.  Compton,  amounted  in  fact  to  little  more  than  surplus- 
age. It  was  evidently  not  relied  upon,  per  se,  or  the  subsequent 
motion  would  not  have  been  made ;  and,  if  the  motion  to  strike 
out  be  granted,  though  made  after  the  circuit,  it  in  effect  gives 
the  defendant  all  the  benefit,  which  the  species  of  inchoate  in- 
quest, like  that  in  Allen  v.  Compton,  could  have  afforded.  The 
case  presents  a  close  analogy  to  the  motion  for  judgment  on  a 
frivolous  pleading,  under  sec.  247,  in  which,  the  motion,  when- 
ever made,  affords  all  the  relief  that  is  requisite,  and  the  prac- 
tice may  well  be  considered  as  analogous  in  all  respects.  The 
remedy  of  striking  out  seems  too  to  be  only  appropriate  in 
very  gross  cases,  and  the  imposition  of  proper  terms  to  be  the 
more  usual  course  contemplated  by  the  section,  as  it  now  stands. 
This  form  of  proceeding  seems  also  to  be  clearly  in  view  in 
Cooper  v.  Jones,  4  Sandf.  699,  in  which,  after  laying  down  that 
the  right  of  the  party  to  amend,  as  of  course,  after  the  receipt 
of  a  demurrer,  is  absolute,  the  court  proceeds  as  follows  :  "  The 
only  exception  made  by  the  Code  is,  that  the  party  shall  not 
amend  for  the  purpose  of  delay.  If  it  be  made  for  delay,  the 
court  will  strike  it  out,  or  impose  terms  on  the  party." 

§  116.  Service  of  Amended  Pleading. 

It  will  be  observed,  that,  on  the  amendment  in  sec.  172,  above 
noticed,  an  oversight  has  been  committed  by  the  legislature.  As 
the  sentences  now  run,  it  might  seem  that  the  service  of  a  copy 
of  the  amended  pleading  is  only  obligatory,  in  cases  where  the 


344  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

power  to  amend  has  been  abused,  and  not  in  those  where  the 
pleading  is  bona  fide  amended. 

There  can  be  no  question  but  that  the  section  in  general 
must  be  construed  in  this  respect,  according  to  its  purport,  as  it 
stood  in  the  Code  of  1849. 

In  every  case,  therefore,  in  which  a  pleading  is  amended,  a 
full  and  complete  copy  must  be  forthwith  served  upon  the  op- 
posite party;  and,  if  it  be  not  served  within  the  time  allowed, 
the  bare  amendment  of  the  pleading  itself  will  be  an  utter 
nullity. 

Where,  after  taking  judgment  by  default  against  one  of 
several  defendants,  the  plaintiff  afterwards  amended  his  com- 
plaint, in  matter  of  substance,  and  not  of  mere  form,  it  was  held 
that  he  must  serve  a  copy  on  the  defendant  in  question,  and  give 
him  an  opportunity  of  defending,  if  so  advised.  The  People  ex 
rel.  Rumsey  v.  Woods,  2  Sandf.  652,  2  C.  K.  18.  The  fact  that, 
by  a  subsequent  amendment,  a  previous  judgment  by  default 
is  practically  set  aside,  should  therefore  be  borne  in  mind  by  all 
plaintiffs  in  similar  cases. 

The  above  rule  as  to  service  is,  of  course,  applicable  to  all 
cases  whatsoever,  whether  falling  under  the  principles  of  the 
previous,  or  of  the  succeeding  section. 


§  117.  Amendments  by  leave  of  the  Court. 

We  now  come  to  consider,  in  the  second  place,  the  nature  of 
the.  amendments  which  will  be  permitted,  on  special  application 
to  the  court  for  that  purpose. 

The  section  peculiarly  relating  to  these  applications  is  sec. 
173,  which  runs  as  follows  : 

§  173.  The  court  may,  before  or  after  judgment,  in  furtherance  of 
justice,  and  on  such  terms  as  may  be  proper,  amend  any  pleading,  pro- 
cess, or  proceeding,  by  adding  or  striking  out  Lite  name  of  any  party, 
or  by  correcting  a  mistake  in  the  name  of  a  party,  or  a  mistake  in  any 
other  re  pect,  or  by  inserting  other  allegations  material  to  the  case,  or, 
•when  the  amendment  does  nol  change  substantially  the  claim  or  defence, 
by  conforming  the  pleading  <>r  proceeding  to  the  facts  proved. 

See  Chapman  v.  Webb,  6  How.  390,  1  C.  R.  (N.  S.)  388,  as  to 
word  "or,"  in  tin-  Last  place  in  which  it  appears  in  this  section. 
It  will  be  observed  that  this  provision,  though,  in  its  general 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  TARTY.  345 

scope,  it  bears  reference  to  the  subject  now  under  consideration, 
is  also  of  wider  operation. 

Whether  an  amendment  of  this  nature  should  or  should  not 
be  allowed  at  the  circuit,  is  a  question  addressed  to  the  discre- 
tion of  the  judge,  and  his  decision  is  not  the  subject  of  review  ; 
Phincle  v.  Vaughan,  12  Barb.  215;  nor  is  it  a'subject  of  excep- 
tion; Brown  v.  McCune,  5  Sandf.  224. 

The  test  as  to  changing  the  cause  of  action  or  defence,  was 
first  inserted  in  general  terms  on  the  amendment  of  1841 ;  but, 
by  a  trifling  change  in  the  wording,  on  its  revision  in  1852,  its 
operation  is  now  greatly  restricted.  As  it  stood  on  its  first  in- 
sertion, the  condition  precedent,  that  an  amendment  should  not 
change  substantially  the  claim  or  defence,  was  applicable  to  all 
cases  whatsoever ;  but,  by  the  present  language  of  the  section, 
that  condition  is  expressly  confined  to  amendments  after  trial, 
for  the  purpose  of  conforming  the  pleading  or  proceeding  to 
the  facts  proved,  and  is  applicable  under  no  other  circumstances. 
In  all  other  cases,  it  would  seem  from  Beardsley  v.  Stover,  7 
How.  294,  that  the  court,  in  its  discretion,  may  allow  "any  alle- 
gations material  to  the  case"  to  be  inserted  in  the  pleading,  even 
though  the  effect  may  be  to  change  entirely  the  cause  of  action 
or  defence ;  and,  in  that  case,  such  an  amendment  was  granted, 
allowing  the  defendant  to  add  to  his  answer  a  counterclaim, 
pending  a  reference  on  the  original  issue,  on  proper  terms  as  to 
time  to  reply,  and  a  stay  of  proceedings. 

Although  it  rests  in  the  discretion  of  the  court  to  grant  amend- 
ments in  all  cases,  except  the  one  specified,  even  though  they 
may  have  the  effect  of  changing  the  cause  of  action  or  defence ; 
still,  that  test  has  been,  and  will  probably  be  still  imposed  in 
all  ordinary  cases,  not  calling  for  special  relief,  under  special 
circumstances.  It  had  been  already  imposed  under  the  Code 
of  1849,  which  was  silent  on  the  subject.  See  Brown  v.  Babcock, 
3  How.  305 ;  1  C.  E.  66. 

An  amendment,  involving  an  entire  change  of  parties,  plain- 
tiff" and  defendant,  so  as  to  constitute,  in  fact,  a  new  suit,  was 
refused  in  Wright  v.  Storms,  3  C.  E.  138.  Where,  too,  the  plain- 
tiff had  first  served  a  complaint  for  the  recovery  of  goods  in 
replevin,  and  afterwards  amended,  making  the  action  as  in  as- 
sumpsit, and  the  defendant  had  served  two  separate  answers, 
one  to  each  complaint,  and  entitled  accordingly  ;  it  was  held  that 
both  the  first  answer  and  the  amended  complaint  were  bad,  and 


346  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

a  motion  to  strike  out  the  former  was  granted,  leave  being 
given  to  move  to  set  aside  the  amended  complaint ;  in  which 
case,  if  granted,  the  first  answer  was  to  stand  and  the  second  to 
be  set  aside.  Though  irregular,  the  defendant  had  no  right  to 
treat  the  amended  complaint  as  a  new  suit,  and  to  answer  in 
both  ;  he  ought  to  have  moved  to  set  it  aside  in  the  first  in- 
stance. See  Megrath  v.  VanWyck,  2  Sandf.  651.  See  also  Spal- 
ding v.  Spalding,  8  How.  297;  1  C.  R.  64 ;  sed  vide,  per  contra, 
Dows  v.  Green,  3  How.  377,  where  an  amendment  was  allowed, 
changing  the  form  of  action  from  a  claim  for  damages  to  one  in 
replevin,  on  the  ground  that  the  cause  of  action  was  not  changed, 
but  remained  the  same.  The  same  relief  was  granted  in  Furniss 
v.  Brown,  8  How.  59.  See  also  these  last  views  enforced,  and 
applied  to  the  provision  as  it  now  stands,  in  Chapman  v.  Webb, 

6  How.  390 ;  ICE.  (N.  S.)  388,  the  change  being  there  from 
contract  to  tort,  on  the  same  cause  of  action.  See  likewise 
Field  v.  Morse,  8  How.  47,  where  an  amendment  to  the  contrary 
effect  was  also  sustained. 

In  Houghton  v.  Latson,  10  L.  0.  82,  an  amendment,  by  adding 
an  entirely  new  ground  of  defence,  was  refused,  on  the  ground 
that  such  amendment  "  substantially  changed  the  defence,"  and 
was  therefore  inadmissible,  under  sec.  178,  as  last  amended. 

With  reference  to  amendments  made  for  the  express  purpose 
of  conforming  the  pleading  to  the  facts  proved,  it  is  laid  down  in 
Fayv.  Grimsteed,  10  Barb.  321,  that  a  fatal  variance  must  leave 
the  case  unproved  in  its  entire  scope  and  meaning.  If  left  un- 
proved in  some  particulars,  it  is  a  subject  for  amendment  upon 
terms,  if  the  adverse  party  has  been  misled  by  it,  otherwise 
amendments  may  be  made  at  the  trial,  and  without  any  condi- 
tions whatever. 

An  amendment,  for  the  purpose  of  averring  words,  on  which 
slander  was  1  nought,  in  the  original  language,  was  held  not  to 
be,  a  subi  tantial  change  of  the  cause  of  action,  and  to  be  admis- 
sible, in  Debada  v.  Lehind,  1  C.  R  (N.  S.)  235. 

Where  the  cause  of  action  is  not  substantially  changed,  the 
courts  are  disposed  to  show  great  liberality  on  the  subject  of 
amendments,  involving  a  change  of  parties.  See  Jhitcher  v. 
Slack,  8  11"    .  322,  I  < '.  I!.  L13;    Vanderwerker  v.  Vanderwerker, 

7  Barb. 221  ;  Brown  v.  Babcock,  3  How.  805;  1  C.  U.  66;  Bemis 
v.  Branson,  1  (".  R.  27:  the  two  former  being  cases  of  adding 
the  names  of  nee     ary  plaintiffs,  the  two  latter  of  striking  out 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  347 

unnecessary  defendants.  In  Barnes  v.  Ferine,  9  Barb.  202,  it 
was  held  that  a  mistake  in  the  names  of  the  plaintiffs,  (who  in 
that  ease  were  trustees  of  a  religious  incorporation,)  was  not 
a  ground  of  nonsuit,  and  that  such  mistake  could  be  corrected, 
on  the  trial,  or  afterwards  by  amendment.  In  Travis  v.  Tobias, 
8  How.  333,  it  was  held,  however,  that  an  amendment  striking 
out  a  plaintiff,  ought  properly  not  to  be  made  instanter  on  the 
trial,  but  on  motion,  and  on  just  terms. 

One  plaintiff  may  be  substituted  for  another  by  amendment, 
where  the  interest  of  the  latter  has  passed  entirely  to  the  former, 
during  the  action ;  and  this,  even  when  the  matter  is  actually, 
at  the  time  of  such  application,  in  the  course  of  hearing  before 
a  referee.     Davis  Y.Schermerhorn,  5  How.  440. 

Objections  on  the  ground  of  misjoinder  of  parties,  will  be,  in 
many  cases,  disregarded  at  the  trial,  but  with  leave  to  the  parties 
to  apply  afterwards  for  an  amendment,  in  case  they  should  think 
it  prudent,  with  reference  to  future  proceedings.  De  Peyster  v. 
Wheeler,  1  C.  E.  93 ;  1  Sandf.  719. 

Where,  however,  the  defect  of  parties  is  not  merely  formal, 
but  actual  and  important,  an  amendment  of  this  nature  will 
only  be  allowed,  on  payment  of  all  costs  since  the  filing  of  the 
original  bill.     Johnson  v.  Snyder,  8  How.  498. 

The  name  of  a  next  friend  was  allowed  to  be  inserted  in  a 
complaint  by  amendment,  on  its  being  decided  that  the  suit  in 
that  case  could  not  be  brought  by  a  wife  in  her  own  name 
alone.  Forrest  v.  Forrest,  3  C.  E.  254.  See  also  Willis  v. 
Underhill,  6  How.  396. 

With  respect,  also,  to  the  subject-matter  of  the  action,  and 
the  time  within  which  an  amendment  will  be  granted,  the 
courts  have  shown  great  liberality ;  thus,  where,  after  a  reply 
had  been  served,  the  plaintiff,  on  subsequent  investigation,  dis- 
covered that  a  larger  sum  was  due  to  him  than  that  originally 
claimed,  he  was  allowed  to  amend  his  complaint  in  that 
respect.  Merchant  v.  The  N.  Y.  Life  Insurance  Company,  2 
Sandf.  669;  2  C.  E.  66,  87. 

So,  too,  where,  after  answer  put  in,  and  after  the  taking  of  the 
testimony  of  a  witness,  u  de  bene  esse,,}  it  was  shown  by  affidavit 
of  the  plaintiff's  attorney,  that,  in  drawing  the  complaint,  he, 
the  attorney,  had  misunderstood  the  nature  and  effect  of  his 
claim ;  an  amendment  was  allowed,  on  payment  of  costs.  Hare 
v.  White,  3  How.  296,  1  C.  E.  70.     In  Jackson  v.  Sanders,  1 


348  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

C.  R.  27,  a  count  on  a  special  contract  was  allowed  to  be 
introduced  on  amendment,  in  lieu  of  the  common  count  on  two 
promissory  notes ;  and,  in  The  Executors  of  Keese  v.  Fullerton,  1 
C.  R.  52,  a  material  averment  was  allowed  to  be  so  introduced 
on  payment  of  costs,  which  will  be  in  general,  it  might  indeed 
be  said  universally  imposed,  on  the  allowance  of  amendments 
of  this  nature. 

The  court,  too,  will  be  disposed  to  allow  such  amendment, 
on  the  adversary's  motion  to  impeach  the  defective  pleading, 
without  putting  the  party  to  the  expense  and  delay  of  a  sub- 
stantive motion  for  that  purpose.  /Spalding  v.  /Spalding,  before 
cited.     See  also,  Weare  v.  Slocum,  3  How.  397;   1  C.  R.  105. 

Supplemental  matter,  occurring  after  the  commencement  of 
the  suit,  cannot  be  introduced  by  amendment  at  all.  A  supple- 
mental pleading  will  be  necessary.  Homfager  v.  Hornfoger,  6 
How.  13;  1  C.  R.  (N.  S.)  180. 

In  Raynor  v.  Clark,  7  Barb.  581,  3  C.  R.  230,  the  plaintiff 
was  allowed  to  amend  his  complaint,  on  the  reversal  of  a  judg- 
ment erroneously  taken  by  him.  In  Lettman  v.  JRitz,  3  Sandf. 
73-4,  an  amendment  of  the  complaint  was  allowed  after  the 
trial,  the  object  of  it  being  formal,  and  the  defendant  not  com- 
plaining of  surprise;  but  terms  were  imposed. 

In  Clasonv.  Corley,  5  Sandf.  454,  10  L.  O.  237,  it  was  held 
that  a  formal  amendment  of  a  bill  in  equity,  which  had  been 
already  taken  pro  confesso,  not  altering  the  title  of  the  plaintiff 
to  the  relief  sought,  nor  the  nature  or  terms  of  that  relief, 
though  made  without  notice  to  the  defendant,  did  not  render  a 
subsequent  decree  against  him  irregular  and  void.  This  species 
of  relief,  however,  will,  under  ordinary  circumstances,  be  cau- 
tiously administered.     See  Field  v.  Hawxhurst,  9  How.  75. 

In  Fidd  v.  Morse,  8  How.  47,  an  amendment,  striking  out 
allegations  of  fraud,  inserted  in  an  action  on  contract,  on  motion 
made  by  the  plaintiff,  after  judgment  by  default  entered  on  the 
original  complaint  was  set  aside,  was  held  to  be  admissible  and 
proper. 

In    Balcom  v.    Woodruff,  7  Barb.   13,  a  plaintiff  was  allowed 

to  amend  his  declaration,  after  be  had  been  nonsuited,  and  to 

do  BO  nunc  />/■•>  tunc,  as  otherwise  the  statute  would  have  run 

out;  although  the  court  expressly  guarded  against  their  decision 

drawn  into  a  precedent;  and 

In  Bu/rnap  v.  Halhran,  1  ('.  It.  51,  leave  was  granted  to  tho 


PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY.  349 

plaintiff  to  amend,  by  adding  a  new  count  to  Lis  declaration, 
even  after  two  trials  had  been  had,  resulting  in  the  defendant's 
favor;  it  not  appearing  that  the  defendant  had  been  misled,  or 
that  the  plaintiff  sought  to  introduce  a  new  cause  of  action. 

It  would  not  be  safe,  however,  to  calculate,  in  other  instances, 
upon  the  extent  of  liberality  evinced  in  the  two  last  decisions. 
That  there  is  some  limit  to  it,  is  evinced  by  the  case  of  Hough- 
ton v.  Skinner,  5  How.  420,  where,  two  trials  having  already 
been  had,  the  court  refused  leave  to  amend,  by  pleading  a 
former  judgment  against  a  co-defendant,  (the  suit  being  one 
against  joint  contractors,)  the  matter  sought  to  be  so  pleaded 
having  been  known  to  the  defendant,  before  issue  was  originally 
joined  in  the  cause,  so  that  it  might  have  been  pleaded  in  the 
first  instance. 

So  in  Malcom  v.  Baker,  8  How.  301,  leave  to  amend  an  answer, 
after  an  appeal  from  a  judgment  affirmed  at  General  Term,  was 
refused;  though,  on  that  affirmance,  leave  had  been  given  to 
the  defendants  to  make  the  application.  It  was  held  that  the 
judgment  must  first  be  set  aside,  before  such  leave  could  be 
given,  and  that  such  a  motion  could  not  be  entertained  by  the 
Special  Term.  Even  if  this  could  be  done,  it  should  not  only 
appear  that  the  party  has  been  surprised  or  misled,  after  the 
exercise  of  ordinary  care  and  skill,  but  also,  that  the  amend- 
ment asked  for  is  clearly  required,  in  order  to  promote  the  ends 
of  justice,  before  such  a  stretch  of  the  power  of  amendment  can 
be  consented  to. 

Leave  to  amend  will  not  be  granted  for  the  sole  purpose  of 
setting  up  an  unconscientious  defence,  as  that  of  usury.  Bates 
v.  Voorhies,  7  How.  234.  See  too,  Guriter  v.  CatUn,  1  Duer, 
253, 11  L.  O.  201.  So  also,  as  to  setting  up  a  re-sale  of  property 
for  which  notes  had  been  given,  as  a  defence  in  an  action  on 
those  notes.     Davis  v.  Garr,  7  How.  311. 

The  subject  of  amendments  on  the  trial  will  be  reconsidered 
in  the  subsequent  chapter,  devoted  to  that  stage  of  the  action. 

It  is  essential,  in  order  to  the  power  of  the  courts  to  amend, 
that  the  application  for  that  purpose  should  be  made  in  a  suit 
duly  existent.  Thus,  where,  in  a  suit  transferred  from  a  jus- 
tices' court,  the  plaintiff  had  deposited  a  summons  and  complaint 
with  the  justice;  and  the  defendant,  in  ignorance  of  his  having 
done  so,  had  omitted  to  give  an  admission  of  service,  within  the 
time  prescribed  by  sec.  56,  the  court  disclaimed  any  power  to 


350  PLEADINGS,  AMENDMENT  OF  BY  MOVING  PARTY. 

grant  relief  under  those  circumstances.  No  summons  had  been 
served,  and  consequently,  no  action  was  pending,  in  which  they 
could  exercise  jurisdiction.  Davis  v.  Jones,  4  How.  340;  3  C. 
R.  63.  This  objection  is,  however,  capable  of  waiver,  by  any 
proceeding,  such  as  the  acceptance  of  an  answer,  which  recog- 
nizes the  matter  as  pending.  Wiggins  v.  Tallmadge,  7  How. 
404. 

An  amendment,  if  allowed  at  all,  should  be  allowed  to  be 
made  complete,  for  all  the  purposes  for  which  it  is  required. 
See  Tuvck  v.  Richmond,  13  Barb.  533,  in  relation  to  the  practice 
in  justices'  courts. 

Amendments  of  the  foregoing  nature  are,  as  a  general  rule, 
only  allowable  on  payment  of  costs.  See  Hare  v.  White,  and  Exe- 
cutors of  Keese  v.  Fidlerton,  above  cited.  In  Johnson  v.  Snyder, 
8  How.  498,  an  essential  amendment  was  only  granted,  on  the 
terms  of  the  payment  of  all  costs  since  the  filing  of  the  original 
bill.  In  Chapman  v.  Well,  6  How.  390,  1  C.  R.  (N.  S.)  388,  it 
is  laid  down  that  an  ordinary  amendment  of  the  complaint  will 
be  allowed,  as  heretofore,  on  payment  of  the  costs  of  the  term, 
and  costs  of  motion,  unless  the  defendant  has  to  change  his 
defence,  in  which  case,  he  is  entitled  to  the  payment  of  the 
whole  of  his  costs,  up  to  the  time  of  the  amendment. 

The  subject  of  supplemental  pleadings,  in  respect  of  matters 
arising  after  the  commencement  of  the  suit,  will  be  hereafter 
considered. 

The  amendment  of  a  pleading  does  notrendcr  it  a  subsequent 
pleading,  so  far  as  verification  is  considered.  Hempstead  v. 
Hempstead^  7  How.  8.  See  supra,  under  the  head  of  Verifica- 
tion. 

An  order,  directing  a  complaint  to  be  amended  in  certain 
particulars,  does  not  debar  the  plaintiff  from  amending,  as  of 
course,  in  other  respects,  within  the  time  allowed  for  that  pur- 
;  but  he  will  be  precluded  from  inserting  any  matter 
directed  to  be  stricken  out  by  the  order.  When,  however,  an 
aded  complaint  has  been  actually  served  under  the  order, 
his  ii  lii  to  amend,  as  of  course,  will  be  gone,  and  he  can  only 
do  so  by  leave  of  the  court.    Jerolvman  v.  Oohenf  1  Ducr,  629. 


PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION.        351 


CHAPTER     IV. 

OF  THE  CORRECTION  OF  PLEADINGS,  ON  MOTION  OF  THE  ADVERSE 

PARTY. 

§  118.   Preliminary  Remarks. 

Although,  as  was  the  case  with  regard  to  the  matters  treated 
of  in  the  last  chapter,  a  variety  of  considerations,  arising  out  of 
the  subject  above  proposed,  are  more  peculiarly  cognizable  with 
reference  to  particular  stages  of  pleading  ;  still  many  also  arise, 
in  relation  to  the  subject,  when  generally  considered,  in  which 
point  of  view  it  will  accordingly  be  here  treated. 

Objections  of  this  nature  most  usually  arise  with  reference  to 
the  insertion  of  surplus  matter.  The  ordinary  remedy,  with 
respect  to  deficiency  in  necessary  allegations,  is  by  demurrer. 
On  one  point  alone,  is  the  proceeding  by  motion  applicable  in 
this  latter  state  of  circumstances,  and  that  is  with  respect  to 
indefinite  and  uncertain  allegations. 

The  provisions  of  the  Code  on  this  subject,  are  as  follows  : 

§  1G0.  If  irrelevant  or  redundant  matter  be  inserted  in  a  pleading, 
it  may  be  stricken  out,  on  motion  of  any  person  aggrieved  thereby. 
And  when  the  allegations  of  a  pleading  are  so  indefinite  or  uncertain 
that  the  precise  nature  of  the  charge  or  defence  is  not  apparent,  the 
court  may  require  the  pleading  to  be  made  definite  and  certain,  by 
amendment. 

§  119.   When  Motion  proper  Remedy,  or  the  reverse. 

The  general  practice  on  motions  of  this  nature  is  thus  laid 
down  by  the  Superior  Court  in  2  Sandf.  682,  Anon. :  "  On  an 
appeal  from  chambers,  the  court  decided  that,  on  a  motion  to 
strike  matter  out  of  a  pleading  as  irrelevant,  redundant,  or  fri- 
volous, it  would  be  governed  by  the  consideration  whether  it 
was  in  any  wise  questionable  as  to  the  matter  being  good  in 
point  of  law.  If  there  were  any  reasonable  doubt  of  the  mat- 
ter being  pertinent,  the  court  should  put  the  party  to  his  de- 


352         PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

murrer.  In  respect  to  matter  palpably  redundant  or  frivolous, 
the  court  will  strike  it  out  of  course."  26th  Jan.,  1850.  The 
same  principles  had  been  previously  laid  down  by  the  same 
court  in  Corlies  v.  Delaplaine,  2  Sandf.  680,  2  C.  R  117. 

In  all  cases  where  the  pleading  itself,  or  any  separate  state- 
ment of  cause  of  action  or  ground  of  defence  therein,  is  irrele- 
vant as  a  whole,  and  not  in  part  only,  the  proper  mode  of  rais- 
ing the  question  is  by  demurrer,  and  not  by  motion.  It  then 
becomes  a  question  of  entire  insufficiency,  not  of  partial  ir- 
relevancy, and  a  motion  under  the  above  section  will,  in 
such  cases,  be  denied.  White  v.  Kidd,  4  How.  68;  Fabbricotti 
v.  Launitz,  3  Sandf.  743 ;  ICE.  (N.  S.)  121 ;  Benedict  v.  Dale, 
6  How.  352 ;  Nichols  v.  Jones,  6  How.  355.  In  an  unreported 
case  of  Belden  v.  Knowlton,  in  the  Superior  Court,  the  same 
course  was  taken,  and  allegations,  refused  to  be  stricken  out 
upon  motion,  were  afterwards  held  bad  upon  demurrer.  See 
likewise  Harlow  v.  Hamilton,  6  How.  475  ;  Salinger  v.  Luck,  7 
How.  430  ;  Bailey  v.  Easterly,  7  How.  495  ;  Reed  v.  Latson,  15 
Barb.  9  ;  Watson  v.Husson,  1  Duer,  242;  Miln  v.  Vose,  4  Sandf. 
660. 

The  same  principle  was  applied  to  a  motion  under  sec.  248, 
to  strike  out,  as  frivolous,  an  answer  which  answered  the  bill  of 
particulars,  and  not  the  complaint,  in  Scovell  v.  Howell,  2  C.  R. 
33.  It  was  held  that  the  plaintiff's  proper  course  would  have 
been  to  demur.  If  there  is  any  reasonable  doubt  about  the 
matter  complained  of  being  irrelevant,  the  party  will  be  left  to 
his  demurrer.     See  Bedell  v.  Stickles,  4  How.  432,  3  C.  R.  105. 

Defects  of  this  nature  may  now,  however,  be  reached  by  a 
motion  to  strike  out  an  answer  or  defence,  as  irrelevant,  under 
sec.  152  as  last  amended;  which  subject,  inasmuch  as  it  goes 
rather  to  the  annulment  than  to  the  correction  of  the  pleading, 
will  l»c  considered  hereafter,  and  the  cases  in  point  cited. 

The  converse  of  the  foregoing  proposition  is  equally  sustain- 
able, and,  when;  the  objection  is  in  any  manner  of  a  partial 
nature,  a  motion  of  tin;  above  description  will  be  the  only  pro- 
per c  and  a  demurrer,  if  resorted  to,  will  fail.  Smithy. 
On  nin,  2  Sandf.  702;  Esmond  v.  Van  Benschoten,  5  How.  44; 
Fry  v.  Bennett,  6  Sandf.  54,  9  I..  O.  330,  1  C.  R.  (N.  S.)  238; 
Bank  of  Briti  h  North  America  v.  Suydam,  6  How.  379,  1  C.  11. 
"(N.  S.)  825.  See,  al  o,  Bailey  v.  Easterly,  7  How.  495;  Gray  v. 
A'< /'V  ,  6  How.  200;  see  likewise  numerous  other  cases  below 
cited. 


PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION.         353 

In  Howell  v.  Fraser,  6  How.  221,  ICE.  (N.  S.)  270,  it  was 
held,  that  where  a  pleading  is  correct  in  substance,  but  not  in 
form,  the  objection,  on  the  ground  of  uncertainty,  should  be 
raised  by  motion  of  the  above  description,  and  not  by  demur- 
rer. See,  also,  Fry  v.  Bennett,  5  Sandf.  54,  9  L.  0.  330 ;  1  C. 
R.  (N.  S.)  238,  as  before  stated. 


§  120.   When  Motion  to  he  made,  and  how. 

A  motion  of  this  nature  must  be  made  at  once,  and  without 
delay.  This  was  held  in  Isham  v.  Williamson,  7  L.  O.  340,  and 
Corlies  v.  Delaplaine,  2  Sandf.  680;  2  C.  E.  117;  overruling 
Stokes  v.Hagar,  7  L.  O.  16,  1  C.  R.  84,  even  before  the  rules  of 
the  Supreme  Court  were  made.  The  question  is  now  put  out 
of  doubt  by  Rule  40,  which  expressly  provides  that  motions  of 
this  nature,  and  also  those  on  the  ground  of  a  pleading  being 
indefinite  or  uncertain,  "  must  be  noticed  before  demurring  to 
or  answering  the  pleading  objected  to,  and  within  twenty  days 
from  the  service  thereof."  See  also  Rogers  v.  Rathbone,  6  How.  66. 

In  the  Appendix  will  be  found  a  form  of  notice  of  motion, 
under  the  above  circumstances.  The  notice  should  specify 
exactly  the  parts  objected  to.  This  motion  being  made  on  the 
pleading  itself,  no  affidavit  will  be  necessary.  See  Barrow  v. 
Miller,  5  How.  247,  3  C.  R.  241.  In  case,  however,  the  oppo- 
site party  does  not  appear,  it  will  be  expedient  to  be  prepared 
with  proof,  that  the  pleading  moved  upon  is  the  one  actually 
served  by  him,  and  of  the  date  when  it  was  so  served. 

In  Rogers  v.  Rathbone,  6  How.  66,  above  cited,  the  court  held 
that,  on  a  motion  of  this  description,  it  was  incumbent  on  the 
moving  party  to  prove  affirmatively,  when  the  pleading  moved 
upon  was  served,  so  as  to  show  that  the  motion  is  made  in  good 
time;  and  the  application  in  that  case  was  denied,  though 
without  costs,  and  without  prejudice,  the  pleading  there  com- 
plained of  being  clearly  objectionable. 

In  Barber  v.  Bennett,  however,  4  Sandf.  705,  this  conclusion 
is  denied,  and  it  was  held  that  it  is  not  necessary  for  the  moving 
papers  to  show  affirmatively  that  the  motion  was  made  in  due 
time,  but  that,  if  such  be  not  the  case,  the  adverse  party  must 
show  the  fact,  in  the  same  way  that  he  establishes  any  matter 
of  defence  not  apparent  in  the  papers ;  and  the  authority  of 
23 


354        PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

this  case  is  confirmed  by  that  of  Roosa  v.  The  Saugerties  and 
Woodstock  Turnpike  Road  Company,  8  How.  237. 

The  right  to  make  a  motion  of  the  above  description  will  be 
waived,  by  any  proceeding  recognizing  the  adverse  pleading  as 
sufficient  for  ulterior  purposes. 

Thus,  it  has  been  held  that  this  right  is  waived  by  the  ser- 
vice of  a  reply,  Corlies  v.  Delaplaine,  2  Sandf.  680,  2  C.  E. 
117 ;  by  the  service  of  an  answer,  Goch  v.  Marsh,  8  How.  439  ; 
or  even  by  the  extension  of  the  time  to  answer  or  reply,  Bow- 
man v.  Sheldon,  5  Sandf.  657,  10  L.  O.  338  ;  Isham  v.  William- 
son, 7  L.  0.  340 ;  or  by  noticing  the  cause  for  trial,  by  which 
the  party  admits  that  his  adversary's  pleading  is  sufficient  to 
raise  an  issue,  either  of  law  or  of  fact.  Esmond  v.  Van  Ben- 
schoten,  5  How.  44. 

Objections  to  a  pleading  must  not  be  split  up  into  different 
motions.  They  should  all  be  taken  at  once,  or  a  second  appli- 
cation will  not  be  granted  after  the  failure  of  the  first.  Des- 
mond v.  Wool/,  6  L.  O.  389 ;  1  C.  E.  49. 

§  121.  Irrelevancy  or  Redundancy. 

The  question  as  to  what  will  or  will  not  be  considered  as  im- 
material averments,  has  already  been  partially  gone  into  in  the 
first  chapter  of  this  part,  and,  therefore,  the  cases  there  cited  in 
full,  will  be  only  more  slightly  noticed  here. 

As  might  have  been  anticipated,  there  has  been  some  discre- 
pancy between  the  views  of  different  judges,  as  to  what  will  or 
will  not  be  considered  as  irrelevant  allegations,  some  inclining 
to  a  strict,  and  others  to  a  more  extended  view  of  the  subject. 

Stricter  View.] — The  following  are  in  favor  of  a  strict  con- 
struction of  the  provision : 

Where  the  complaint  in  slander,  after  averring  a  sufficient 
cause  of  action,  alleged,  also,  a  subsequent  usage  of  the  same 
words  <»n  divrs  days  and  times,  before  suit  brought,  and  like- 
wise of  other  similar  words,  not  specifically  alleged:  it  was  held 
that  no  evidence  could  be  given  on  the  latter  allegations,  and 
that,  on  a  proper  application,  they  might  be  stricken  out  as 
redundant,  but  that  demurrei  >uld  not  lie.  dray  v.  Ncllis,  6 
How.  290. 

In  Benedict  v.  Seymour,  6  II    V.  298,  it  was  held  that,  unless 


PLEADING,  CORRECTION"  OF,  ON  ADVERSE  MOTION.        355 

separate  causes  of  action  in  a  complaint  be  properly  distin- 
guished, and  severed  into  separate  allegations,  every  allegation 
not  essential  to  a  single  cause  of  action,  must,  if  objected  to,  be 
stricken  out  as  redundant.  Whether  this  principle  is  maintain- 
able to  its  full  extent,  seems,  however,  somewhat  doubtful ;  and, 
even  if  it  should  be  held  to  be  so,  leave  to  amend  would  doubt- 
less be  granted. 

The  leading  case  on  the  stricter  side  of  the  question  is,  how- 
ever, Dollner  v.  Gibson.  3  C.  E.  153,  9  L.  O.  77,  before  com- 
mented on,  but  now  reversed  by  the  General  Term,  as  before 
noticed.  Floyd  v.  Dearborn,  2  C.  R.  17,  and  Pattisonv.  Taylor, 
8  Barb.  250, 1  C.  R.  (N.  S.)  174,  are  also  decisions,  in  which  the 
same  severely  technical  principles  were  carried  out,  but  the 
authority  of  which  is  now  more  than  doubtful. 

More  liberal  Vieiv.~] — In  Boyce  v.  Brown,  7  Barb.  80,  3  How. 
391,  the  more  liberal  view  was  laid  down  in  the  following  terms: 

"  The  pleadings  are  to  be  liberally  construed,  with  a  view  to 
substantial  justice,  and  the  court  is  to  disregard  errors  and 
defects,  which  do  not  affect  the  substantial  rights  of  the  party." 
"It  is  the  duty  of  the  courts,  as  far  as  may  be,  to  carry  that 
change  into  effect,  in  good  faith,  and  in  all  its  spirit.  This  must 
be  done  by  liberal  amendments,  and  by  the  disregard  of  even- 
thing  formal." 

In  Whitney  v.  Waterman,  4  How.  313,  a  similar  tendency 
was  shown,  in  holding  that  an  order,  leaving  in  immaterial 
matter,  was  not  appealable,  though  an  order  striking  it  out 
might  be  so,  if  made  to  appear  that  such  matter  involved  the 
merits. 

The  courts  have,  in  fact,  generally  shown  a  disposition  rather 
to  discourage  motions  under  this  section,  than  the  reverse.  An 
answer  in  which  a  valid  defence  is  defectively  pleaded,  cannot 
be  held  to  be  either  irrelevant  or  redundant,  and  the  plaintiff  is 
not  bound  to  take  any  objection  to  it  on  either  of  those  grounds. 
Gould  v.  Homer,  1  C.R.  (N.  S.)  356. 

In  Ingersoll  v.  IngersoU,  1  C.  R,  102,  the  following  test  is 
given,  in  relation  to  applications  of  this  nature : 

"The  true  test  of  immateriality  of  averments  in  a  complaint, 
is,  to  inquire  whether  such  averments  tend  to  constitute  a  cause 
of  action,  or  would,  if  taken  as  true,  be  material  to  the  cause  of 
action;  and,  if  they  do,  they  will  not  be  stricken  out." 


356        PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

See,  likewise,  Williams  v.  Hayes,  Stewart  v.  Bouton,  Rensse- 
laer and  Washington  Plank  JRoad  Company  v.  Wetsel,  Newman 
v.  Otto,  Harlow  v.  Hamilton,  Brown  v.  Orvis,  and  Follett  v. 
Jeivitt,  below  cited. 

Various  Decisions.'] — In  one  class  of  cases,  it  lias  been  insisted 
that,  in  construing  this  section,  full  effect  must  be  given  to  the 
word  "aggrieved,"  and  that,  before  a  party  can  move  to  strike 
out  matter  from  his  adversary's  pleading,  he  must  show  that  he 
is  "aggrieved"  thereby.  White  v.  Kidd,  4  How.  68;  Hynds 
v.  Grisicold,  4  How.  69.  In  the  latter  case,  the  doctrine  is  laid 
down  most  unequivocally,  and  the  learned  judge  was  also 
inclined  to  think  that  a  defendant  is  at  liberty  to  state,  in  his 
answer,  any  facts  which  it  would  be  material  for  him  to  prove 
at  the  trial,  though  such  facts  may  not  constitute  a  complete 
defence. 

The  general  doctrine  of  these  two  cases  is  sustained  by  sub- 
sequent decisions,  though  with  some  qualifications. 

In  Bedell  v.  Stickles,  4  How.  432,  3  C.  E.  105,  the  law,  as  laid 
down  in  the  last  two  cases,  is  mentioned  with  approbation,  and 
the  unfavorable  disposition  of  the  court  towards  these  motions 
is  strongly  evinced ;  it  is  there  laid  clown,  that  the  rule,  to  be 
acted  upon  by  the  court,  should  be  in  analogy  to  that  of  the 
old  Supreme  Court  in  relation  to  frivolous  demurrers,  and  that, 
therefore,  in  all  cases  where  there  was  any  question,  or  ground 
for  argument  about  the  matter  being  irrelevant  or  not,  the 
application  should  be  refused.  The  matters  complained  of  must, 
therefore,  under  the  authority  of  this  case,  be  clearly  and  un- 
doubtedly irrelevant,  or  the  party  will  be  left  to  his  demurrer. 

The  doctrine  of  the  above  decisions  is  also  strongly  up- 
held by  those  of  Burget  v.  Bissell,  5  How.  192,  3  C.  R  215 ;  The 
"Rochester  City  Bank  v.  Suydam,  5  How.  216;  and  Hill  v.  Mc- 
Carthy, 3  C.  I.'.  49,  before  fully  cited  in  the  observations  as  to 
in  pleading.     Sec,  also,  Esmond  v.  Van  Benschoten, 

5  How.  -I  1 ;  Carpenter  v.  West,  5  How.  53;  Rensselaer  and  Wash- 
ington Plank  Road  Co.  v.   Wetsel,  6  How.  68;   Benedict  v.  Dake, 

6  Nov,-.  852;  Clark  v.  Earwood,  8  How.  470.  In  Follett  v. 
./,,/,//.  ll  L  0.  L93,  the  rule  in  these  oases  is  thus  laid  down, 
viz:  that,  unless  it  is  clear  that  no  evidence  can  properly  be 
received  under  the  allegations  objected  to,  they  will  be  retained 
until  the  trial.     See,  likewise,  Root  v.  Foster,  9  How.  37. 


PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION.        357 

The  point,  therefore,  that,  on  motions  of  this  nature,  the  old 
chancery  rules,  with  reference  to  exceptions  for  impertinence, 
will  still  be  substantially  carried  out;  although  with  the  modi- 
fications necessary  in  consequence  of  the  fusion  of  law  and 
equity  into  one  system,  (see  Williams  v.  Hayes,  5  How.  470, 
1  C.  E.  (N.  S.)  148,  below  cited,)  seems  to  be  established  by  the 
above  series  of  decisions.  See,  likewise,  Harlow  v.  Hamilton, 
6  How.  475. 

In  Carpenter  v.  West,  however,  the  doctrine  in  White  v.  Kidd, 
and  Hynds  v.  Oriswold,  as  to  the  necessity  of  its  being  shown 
that  the  party  is  actually  aggrieved  by  the  matter  objected  to, 
is  more  strictly  defined,  and  in  some  respects  qualified. 

"My  own  impressions  are,"  says  the  learned  judge,  in  that 
case,  "  that,  as  to  scandalous  and  impertinent,  irrelevant,  and 
redundant  matter,  the  Code  has  not  in  any  respect  changed  the 
former  practice  in  equity  cases."  "Its  effect  upon  what,  before 
the  Code,  would  have  been  cases  at  law,  is  not  now  under  con- 
sideration. If  this  view  is  correct,  the  adverse  party  may 
always  be  considered  aggrieved  by  scandalous,  irrelevant, 
impertinent,  and  redundant  matter,  in  a  pleading.  I  think  one 
may  be  considered  aggrieved  by  the  interpolation  of  matter 
into  the  pleadings,  in  a  cause  in  which  he  is  a  party,  foreign  to 
the  case;  and  he  always  had  a  right  to  have  the  record  expur- 
gated for  that  reason,  without  reference  to  the  question  of  costs." 
The  learned  judge  then  proceeds  to  lay  down  the  following  lim- 
itations of  the  above  doctrine:  "  If  relevant,  it  cannot  be  scan- 
dalous. Lord  St.  John  v.  Lady  St.  John,  11  Vese\r,  Jr.,  526, 
Story  P.  L.  269,  and  a  few  unnecessary  words  will  not  make  a 
pleading  impertinent.  Del  Pontv.  De  Tastet,  1  Turn,  and  Euss. 
486;  Des  Places  v.  Goris,  1  Edwd.  C.  E.  350:  and  courts  should 
be  liberal,  especially  until  our  novel  system  of  pleading  shall 
have  become  better  settled  and  understood.  Every  fact,  direct 
or  collateral,  tending  to  sustain  the  general  allegations  of  the 
bill,  maybe  inserted,  if  done  in  a  proper  manner."  "Chancellor 
Kent  thought  the  best  test  by  which  to  ascertain  whether  the 
matter  is  impertinent  is,  to  try  whether  the  subject  of  the  alle- 
gations could  be  put  in  issue,  and  would  be  matter  proper  to  be. 
given  in  evidence  between  the  parties."  Woods  v.  Morrell,  1  J. 
Ch.  E.  106. 

In  Williams  v.  Hayes,  5  How.  470,  1  C.  E.  (N.  S.)  148,  the 
views  on  this  subject,  as  taken  in  Carpenter  v.  West,  are  fully 


358        PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

concurred  in,  and  the  qualifications  of  the  doctrine  in  Hynds  v. 
Griswold,  assented  to,  by  the  learned  judge  who  pronounced 
that  decision.  "It  is  not  every  unnecessary  expression  or 
redundant  sentence  which  should  be  expunged  on  motion.  But 
where  entire  statements  are  introduced,  upon  which  no  material 
issue  can  be  taken,  the  opposite  party  may  be  "aggrieved"  by 
allowing  them  to  remain  in  the  pleading.  If  not  answered,  it 
maybe  claimed  that  such  allegations  are  admitted,  and,  if  denied, 
the  record  is  embarrassed  with  immaterial  issues.  In  such  cases, 
it  is  the  right  of  the  adverse  party  to  have  the  matter  improperly 
inserted  in  the  pleading  removed,  so  that  the  record,  when  com- 
plete, shall  present  nothing  but  the  issuable  facts  in  the  case. 
This  I  understand  to  be  the  true  spirit  and  general  policy  of 
the  system  of  pleading  prescribed  by  the  Code."  In  a  previous 
part  of  the  opinion,  the  learned  judge  laid  down  the  general 
criterion  in  such  cases  as  being,  whether  the  allegation  "  can 
be  made  the  subject  of  a  material  issue.  If  it  can,  it  has  a  right 
to  be  found  in  the  pleadings ;  if  not,  it  ought  not  to  be  there." 
See  the  same  principles  laid  down  in  The  Rensselaer  and  Wash- 
ington Plank  Road  Company  v.  Wetsel,  6  How.  68,  and  Stewart 
v.  Bouton,  6  How.  71;  9  L.  0.  353 ;  1  C.  E.  (N.  S.)  404. 

The  converse  of  this  last  proposition  is  laid  down  in  Averill 
v.  Taylor,  5  How.  476,  where  it  was  held  that  no  part  of  a 
pleading  ought  to  be  stricken  out,  if  it  can  in  any  event  become 
material.  A  prayer  for  relief  introduced  into  the  answer  in  that 
case,  was,  on  those  grounds,  refused  to  be  stricken  out.  The 
plaintiff  could  not  be  prejudiced  by  it,  inasmuch  as  it  did  not 
require  a  reply,  and  no  issue  could  be  taken  on  it. 

In  Fabbricotti  v.  Launitz,  3  Sandf.  743;  1  C.  K.  (N.  S.)  121, 
before  cited,  irrelevant  matter  is  defined  to  be,  that  "which  has 
no  bearing  on  the  subject  of  the  controversy,  and  cannot  affect 
the  decision  of  the  court."  See,  also,  Bright  v.  Currie,  10  L.  0. 
loi.  5  Sand£  433. 

The  grand  test  of  relevancy  or  irrelevancy  would  seem,  then 
to  be,  with  some  few  qualifications,  that  laid  down  in  various 
of  the  above  oases,  and  especially  in   Williams  v.  I.  f ayes,  viz: 
whether  the  allegation  sought  to  be  impeached  can,  or  cannot, 
be  made  the  suljcc.l  of  a  material  issue. 

This  principle  is  distinctly  and  posi  lively  laid  down  in  New- 
man v.  Olio,  I  Sandf.  668,  with  reference  to  the  materiality  of 
allegations  in  pleading,  and  how  far  they  will,  or  will  not,  be 


PLEADING,  CORRECTION   OF,  ON  ADVERSE  MOTION.         359 

considered  as  admitted  by  non-denial,  under  sec.  168.  See, 
also,  to  the  same  effect,  Harlow  v.  Hamilton,  6  How.  475,  above 
noticed.  See,  likewise,  Brown  v.  Orvis,  6  How.  376,  and  Follett 
v.  Jewitt,  11  L.  0.  193. 

Another  general  principle  is  clear,  that,  in  actions  formerly 
of  strictly  legal  cognizance,  averments  of  probative  facts  are 
improper,  and  will,  as  a  general  rule,  be  stricken  out  as  redun- 
dant. In  actions  of  an  equitable  nature,  greater  latitude  will 
be  permitted,  but,  even  in  these,  unnecessary  averments  of  this 
nature,  only  going  to  collateral  circumstances,  and  not  tending 
to  establish  the  main  cause  of  action,  will  also  be  objectionable. 
See  in  particular  this  doctrine,  as  laid  down  in  Wooden  v.  Waffle, 
1  C.  E.  (N.  S.)  392,  6  How.  145,  before  cited.  Statements  in 
pleading  may  be  redundant,  and  stricken  out  as  such,  without 
being  either  impertinent  or  irrelevant. 

In  Howard  v.  Tiffany,  3  Sandf.  695;  1  C.  E.  (N.  S.)  99, 
although  the.  principles  as  to  the  latitude  of  averment  in  equi- 
table actions  are  liberally  laid  down,  still,  certain  statements  of 
probative  facts  appear  to  have  been  stricken  out  as  irrelevant, 
though  the  particulars  of  those  statements  are  not  given  in  the 
report:  thus  showing  that  the  same  general  rules  prevail  in 
equitable  as  in  legal  cases ;  though  wider  in  their  general  scope, 
in  those  falling  under  the  former  category. 

The  doctrine  that,  in  suits  for  legal  relief,  facts,  and  not  the 
evidence  of  facts,  are  alone  admissible,  is  positively  laid  down 
in  Stone  v.  Be  Puga,  4  Sandf.  681 ;  Harlow  v.  Hamilton,  6  How. 
475 ;  and  Leconte  v.  Jerome,  11  L.  0.  126. 

A  number  of  minor  points  have  been  made  the  subject 
of  special  decision,  apart  from  the  general  principles  above 
noticed. 

Matter  inserted  merely  for  the  purpose  of  enabling  the  plain- 
tiff to  obtain  an  injunetion,  was  held  to  be  irrelevant,  and 
stricken  out  in  Putnam  v.  Putnam,  2  C.  E.  64.  See  also  Milli- 
hen  v.  Carey,  5  How.  272 ;  3  C.  E.  250 ;  but  these  cases  seem 
to  be  overruled  by  Wooden  v.  Waffle,  Howard  v.  Tiffany,  Minor 
v.  Terry,  and  others  before  cited  in  favor  of  the  more  liberal 
doctrine,  in  the  present  chapter,  and  also  in  a  previous  one, 
under  the  head  of  that  remedy.  The  latter  view  seems  clearly 
preferable. 

Averments  of  fraud  inserted  in  a  complaint  on  contract,  for 
the  express  purpose  of  laying  a  foundation  for  an  arrest,  were 


360        PLEADING,  CORRECTION   OF,  ON  ADVERSE  MOTION. 

stricken  out  in  Lee  v.  EUash  3  Simdf.  736,  1  C.  K.  (N.  S.)  116. 
See  likewise,  Field  v.  Morse,  8  How.  47.  See  this  subject  else- 
where fully  considered,  under  the  heads  of  Complaint  and  Ar- 
rest. The  true  principle  seems  to  be,  that  mere  collateral  cir- 
cumstances, exclusively  bearing  upon  the  provisional  remedy, 
and  not  on  the  main  cause  of  action,  are  clearly  redundant. 
Where,  however,  the  circumstances  which  render  the  defendant 
arrestable  form  part  of  the  cause  of  action  itself,  as  in  actions 
for  tort,  they  are  clearly  averrable,  and  should  unquestionably 
be  averred. 

Any  matter  not  involving  a  statement  of  fact,  as,  for  instance, 
a  series  of  pretences  and  charges  according  to  the  old  chancery 
system,  is  clearly  redundant,  and  will  be  stricken  out.  Clark  v. 
Harwood,  8  How.  470.  So,  also,  matter  stated  by  way  of  argu- 
ment only  is  clearly  redundant.  Goiddv.  Williams,  9  How.  51. 
.  Where,  too,  any  portion  of  a  pleading  is  unnecessary,  as,  for 
instance,  where  matter  is  stated  in  reply  to  an  answer  not  con- 
stituting a  counterclaim,  it  will  be  held  redundant  and  stricken 
out.  Putnam  v.  De  Forest,  8  How.  146.  So  also  with  regard  to 
superfluous  counts,  inserted  in  a  pleading  framed  on  the  model 
of  a  declaration  under  the  old  practice.  /Stockbridge  Iron  Com- 
pany v.  Mellen,  5  How.  439 ;  Root  v.  Foster,  9  How.  37 ;  Dows 
v.  Hotchkiss,  10  L.  O.  281. 

A  joint  answer  by  two  parties  severally  liable,  but  verified  by 
one  only,  was  held  to  be  void  as  to  the  party  not  swearing  to  it, 
and  stricken  out,  so  far  as  regarded  his  defence.  Andrews  v. 
Storms,  5  Sandf.  609.  The  words,  "  as  plaintiff  is  informed  and 
believes,"  were  held  to  be  redundant,  and  stricken  out  of  an 
answer,  in  IVuscott  v.  Dole,  7  How.  221,  it  being  laid  down  that 
all  allegations  in  an  answer  must  be  positively  made,  the  form 
of  affidavit  of  verification  being  a  suflicient  qualification,  where 
made  on  information  and  belief.  See  similar  views  in  Doll- 
net  v.  CKbs<mt  above  cited.  Whether  this  doctrine  is  sound, 
when  earned  to  its  full  extent,  is  very  doubtful.  In  a  modified 
sense,  however,  it  is  highly  desirable  that  whenever  an  all 
tion  can  !><•  positively  made,  that  form  of  expression  should  be 
used. 

Matter  in  mere  mitigation  of  a  recovery,  and  not  constituting 
an  affirmative  defence  to  the  plaintiff's  '-ase,  is  clearly  redund- 
ant, and  will  be  Stricken  out,  except  in  the  single  case  of  libel, 
where  a  justification  is  pleaded,  but  not  otherwise.  Smithv.  Watte, 


PLEADING,  CORRECTION  OF,  ON  ADVERSE   MOTION.         361 

7  How.  227 ;  Newman  v.  Otto,  4  Sandf.  668 ;  Brown  v.  Orvis,  6 
How.  376;  Roe  v.  Rogers,  8  How.  356.  See  tins  subject  fully 
considered  hereafter,  in  connection  with  pleadings  in  libel, 
under  the  head  of  Answer. 

Inconsistent  claims,  too,  are  inadmissible  in  the  same  plead- 
ing, and,  in  such  case,  the  party  may  be  compelled  to  elect,  and 
the  portion  rejected  will  be  stricken  out.  Smith  v.  Halhch,  8 
How.  73 ;  Roe  v.  Rogers,  8  How.  356.  A  motion  in  this  latter 
form,  is  recognized  as  the  proper  mode  of  application,  where  a 
pleading  is  impeached  for  duplicity,  in  Gooding  v.  McAllister,  9 
How.  123.  It  has  been  held,  however,  that  inconsistent  defences 
are  admissible  in  the  same  answer.  Stiles  v.  Comstoch,  9  How. 
48 ;    Ostrom  v.  Bixby,  9  How.  57. 

A  denial  on  information  only,  as  a  matter  within  the  defend- 
ant's knowledge,  was  held  to  be  insufficient,  and  stricken  out 
accordingly,  in  Edwards  v.  Lent,  8  How.  28.  •  A  mere  denial  of 
plaintiff's  ownership  of  a  note,  without  alleging  title  in  a  third, 
person,  was  stricken  out,  and  judgment  granted  to  the  plaintiff, 
in  Fleury  v.  Roget,  5  Sandf.  646.  See  similar  principles  laid 
down  in  Edson  v.  Dillaye,  8  How.  273  ;  Hull  v.  Smith,  1  Duer, 
649,  8  How.  149.  See  also  Quin  v.  Chambers,  1  Duer,  673,  11 
L.  O.  155,  as  to  the  partial  striking  out  of  matter  of  this  nature. 

An  allegation  that  a  party  had  unreasonably  refused  to  make 
partition  by  deed,  with  a  view  to  charge  him  with  costs,  was 
held  to  be  irrelevant  in  McGowan  v.  Morrow,  3  C.  E.  9. 

In  The  Stockbridge  Iron  Company  v.  Mellen,  5  How.  439,  a 
complaint  against  a  common  carrier,  containing  what  amounted 
to  the  six  different  counts  of  a  declaration  under  the  old  prac- 
tice, was  held  to  be  clearly  bad ;  and,  unless  the  plaintiff  amend- 
ed within  twenty  days,  all  the  causes  of  action,  except  the  first, 
were  ordered  to  be  stricken  out  as  redundant  or  irrelevant.  See 
Blanchard  v.  Strait,  8  How.  83,  and  Eno  v.  Woodworth,  4 
Comst.  249;  1  C.  R.  (N.  S.)  262,  there  cited.  See,  likewise, 
Wood  v.  Anthony,  9  How.  78,  and  Sipjierly  v.  The  Troy  and 
Boston  Railroad  Company,  9  How.  83,  in  which  a  whole  com- 
plaint, defective  on  this  account,  was  stricken  out,  to  give  the 
plaintiff  the  opportunity  of  remodelling  it  in  proper  form. 

In  many  cases,  however,  the  courts  have  been  less  rigid  in 
their  application  of  the  doctrine  than  in  the  foregoing. 

Although  a  defence  may  not  be  prima  facie  sustainable,  it 
does  not  necessarily  follow  that  it  can  be  stricken  out  as  irrele- 


362        PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

vant:  thus,  in  Hill  v.  McCarthy,  3  C.  E.  49,  the  setting  up  an 
equitable  title  in  an  answer  in  ejectment,  was  refused  to  be 
stricken  out,  though  the  court  considered  that  the  defence  was 
not  sustainable,  and  that  the  defendant  ought  to  maintain  a 
separate  suit. 

Allegations  as  to  the  due  performance  of  certain  ministerial 
acts  by  the  directors  of  a  Mutual  Insurance  Company,  were  re- 
fused to  be  stricken  out  in  Herkimer  County  Mutual  Insurance 
Company  v.  Fuller,  7  How.  210. 

Nor  will  even  undue  prolixity,  of  necessity,  make  a  statement 
of  facts  redundant.  So  held  in  Warren  v. Strutter,  11  L.  O.  94, 
Avhere  the  insertion  of  the  whole  of  a  former  chancery  pleading 
in  an  answer,  was  refused  to  be  stricken  out.  This  conclusion 
seems,  however,  to  be  open  to  very  great  doubt,  as  regards  the 
circumstances  of  that  peculiar  case.  The  distinction  between 
constitutive  and  probative  fact  would  seem  to  have  been  lost 
sight  of,  the  pleading  so  set  forth  appearing  clearly  to  fall  with- 
in the  latter  category. 

A  similar  principle  appears  to  have  been  in  the  view  of  the 
court  in  Johnson  v.  Snyder,  7  How.  395. 

Where,  too,  matter,  though  clearly  redundant,  was  not  prolix, 
and  did  not  tend  to  charge  or  encumber  the  record,  it  was  held 
in  Clark  v.  Harwood,  8  How.  470,  that  it  will  not  be  stricken 
out.  With  reference  to  prolixity,  as  affecting  the  question  of 
costs  under  the  old  practice,  see  North  American  Fire  Insurance 
Company  v.  Graham,  5  Sandf.  197. 

A  party  who  has  himself  made  distinct  though  immaterial 
allegations,  cannot  impeach  his  adversary's  pleadings  in  answer 
to  them  for  redundancy.  King  v.  Utica  Insurance  Company,  6 
How.  485. 

Nor  can  lie  do  so  with  reference  to  facts  omitted  to  be  averred 
by  himself,  but  necessary  to  be  alleged  by  the  adverse  party. 
Lord  v.  Cheeseborough,  -1  Sandf.  690,  1  C.  R  (N.  S.)322. 

Tin'  defendant's  general  power  to  amend  under  a  demurrer  to 
his  answer,  was  held  to  be  positive;  and  undeniable,  where  the 
proceeding  was  not  taken  for  delay,  although  leave  granted  to 
him  to  amend  on  terms,  on  granting  a  previous  motion  for  re  - 
lundancy,  had  been  allowed  by  him  to  expire.  Cooper  v.  Jones, 
-1  Sandf  699. 

When  an  appeal  from  an  order  of  this  description  has  been 
taken,  it  acts,  during  its  pendeney,  as  a  bar  to  bringing  on  the 


PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION.        363 

cause  for  trial  by  the  adverse  party.      Trustees  of  Penu  Yan  v. 
Forhes,  8  How.  285. 

§  122.    Motion  for   Uncertainty. 

Objections  to  pleadings,  on  the  score  of  indefiniteness  or 
uncertainty,  do  not  appear  to  be  of  such  frequent  occurrence. 
In  /Smith  v.  Shufelt,  3  C.  R.  175,  a  motion  of  this  nature  was 
refused;  though  the  answer  merely  alleged,  on  information  and 
belief,  that  the  plaintiff  had  received  something  on  account  of 
his  demand,  and  was  not  entitled  to  the  whole  sum  claimed. 
The  allegation  there  appears  to  have  been,  at  all  events,  suffi- 
cient to  raise  an  issue,  on  which  the  real  question  between  the 
parties  would  be  triable. 

In  Wiggins  v.  Gaus,  3  Sandf.  738 ;  1  C.  E.  (N.  S.)  117,  a 
stricter  view  was  taken,  and  it  was  held  that  two  successive 
answers,  pleading  a  set-off,  the  first,  by  mere  reference  to  the 
complaint,  without  stating  particulars,  and  the  second,  in  the 
words  of  a  common  count  for  work  and  labor  in  assumpsit, 
under  the  old  practice,  were  both  of  them  indefinite  and  uncer- 
tain ;  and  the  former  of  them  was  stricken  out,  with  costs. 

In  Tollman  v.  Green,  3  Sandf.  437,  it  was  laid  down  that  a 
pleading  must  set  forth  the  case  with  sufficient  certainty,  so  as 
to  give  the  court  adequate  data  on  which  to  ground  the  judg- 
ment. The  criterion  here  laid  down  will  be  useful  on  motions 
of  this  nature,  though,  in  that  case,  the  objection  was  raised  by 
demurrer,  and  sustained  by  the  court.  The  latter  proceeding 
will,  in  fact,  be,  for  the  most  part,  the  proper  course  under  such 
circumstances. 

In  Blanchard  v.  Strait,  8  How.  83,  leave  was  given  to  the 
plaintiff  to  amend  his  complaint,  attacked  on  other  grounds, 
only  on  condition  of  his  rendering  it  more  definite  and  certain, 
the  forms  of  the  old  counts  having  been  made  use  of,  and  the 
complaint  giving  no  real  indication  whatever  of  the  facts  relied 
on.     See,  likewise,  Wood  v.  Anthony,  9  How.  78. 

In  the  former  case,  another  objection  was  made  to  the  com- 
plaint, which  also  savored  of  uncertainty,  viz.,  the  not  dividing 
it  into  distinct  and  separate  allegations,  as  required  by  Rule 
87 ;  and  this  requisite  was  also  insisted  on  in  Lippincott  v. 
Goodwin,  8  How.  242. 

In  Otis  v.  Boss,  8  How.  193 ;  11  L.  0.  343,  it  was  considered 


364        PLEADING,  CORRECTION  OF,  ON  ADVERSE  MOTION. 

that  a  motion  on  the  above  ground  does  not  apply  to  defences, 
which  consist  in  mere  denials  of  the  plaintiff's  allegations,  but 
only  to  those  consisting  of  new  matter  involving  distinct  af- 
firmative grounds  of  defence. 

In  West  v.  Brewster,  1  Duer,  647;  11  L.  0.  157,  it  was  held 
that  this  remedy  does  not  apply  to  cases  in  which  the  action  is 
for  an  account,  the  particulars  of  which  are  omitted  to  be  set 
forth,  but  which  can  be  demanded  under  sec.  158 ;  nor  to  those 
cases  in  which  the  plaintiff  demands  an  account  from  the  de- 
fendant, of  matters  within  his  own  personal  knowledge,  and  a 
statement  of  which  he  is  bound  to  furnish. 

Nor  will  a  bill  of  particulars  be  ordered,  of  items  which  may 
enter'  into  the  computation  of  damages,  in  an  action  brought 
under  the  statute,  by  the  representatives  of  a  deceased  person, 
deprived  of  life  by  the  negligence  of  the  defendants.  Murphy 
v.  Kipp,  1  Duer,  659. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  365 


BOOK    VII. 

OF  THE   PLEADINGS   IN  AN  ACTION,  AND  THE  PROCEED- 
INGS  IN  CONNECTION  THEREWITH,  DOWN  TO 
THE  JOINDER  OP   ISSUE. 


CHAPTER    I. 

OF  THE  COMPLAINT,  AND  THE  PROCEEDINGS  COLLATERAL 
THEREWITH. 


§  123.    General  Definition. 

This  pleading  answers  to  the  declaration  at  common  law,  or 
the  bill  in  chancery,  under  the  old  practice.  It  contains  the 
statement  of  the  case  of  the  plaintiff,  under  which  he  seeks 
relief,  and  a  definition  of  the  relief  sought  by  him.  It  is, 
therefore,  the  foundation  of  the  action,  and  the  original  source 
of  all  other  proceedings,  down  to  the  period  of  its  final  termi- 
nation. 

In  justices'  courts,  as  before  remarked,  the  complaint,  and  all 
other  pleadings,  are  verbal,  except  in  certain  cases,  before  ad- 
verted to. 

Statutory  Provisions.'] — The  provisions  of  the  Code  on  the 
subject  of  this  important'  pleading,  are  as  follows: 

§  141.  The  first  pleading  on  the  part  of  the  plaintiff,  is  the  com- 
plaint. 

§  142.  The  complaint  shall  contain: 

1.  The  title  of  the  cause,  specifying  the  name  of  the  court  in  which 
the  action  is  brought,  the  name  of  the  county  in  which  the  plaintiff 
desires  the  trial  to  be  had,  and  the  names  of  the  parties  to  the  action, 
plaintiff  and  defendant. 


366  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

2.  A  plain  and  concise  statement  of  the  facts  constituting  a  cause  of 
action,  without  unnecessary  repetition. 

3.  A  demand  of  the  relief,  to  which  the  plaintiff  supposes  himself 
entitled.  If  the  recovery  of  money  be  demanded,  the  amount  thereof 
shall  be  stated. 

§  124.   Formal  Requisites. 

Titled — The  first  requisite,  then,  for  the  regularity  of  a  com- 
plaint, is,  that  it  should  be  properly  entitled,  a  precaution  which 
ought  indeed  to  be  observed,  with  reference  to  every  pleading 
or  proceeding  in  the  cause.  The  questions  as  to  the  name  of 
the  court  in  which  relief  is  sought,  have  already  been  antici- 
pated, and  the  cases  thereon  cited,  under  the  head  of  Summons. 
It  is  peculiarly  essential  that  this  should  be  properly  stated  in 
the  complaint,  and  that  the  names  of  the  parties  should  also  be 
correctly  given.  A  practice  has  obtained  of  occasionally  enti- 
tling this  pleading,  by  the  name  of  the  plaintiff,  and  the  name 
of  the  first  defendant  alone,  with  the  words  "  et  aV  subjoined, 
to  signify  that  there  are  others.  This  seems  to  be  decidedly 
incorrect,  and  contrary  to  the  evident  meaning  of  the  statute. 
It  is,  however,  one  of  that  species  of  objections  which  the  court 
will,  in  no  case,  allow  to  be  insisted  upon,  to  the  obstruction  of 
justice.  Thus,  in  Hill  v.  Thacter,  3  How.  407,  2  C.  E,  3,  where 
the  complaint  was  entitled,  "Emily  Hill,  &c.  v.  Christian 
Thacter,  instead  of  Emily  Hill,  by  Daniel  Hill,  her  guardian, 
that  title  was  sustained,  inasmuch  as  the  facts  of  Daniel  Hill's 
guardianship,  and  the  names,  were  correctly  given  in  the  body 
of  the  complaint  itself.  This  is,  however,  one  of  those  cases  of 
occasional  occurrence,  which  serve  rather  as  beacons  to  point 
out  the  mistakes  to  be  avoided,  than  as  guides  in  any  respect 
whatever. 

Venue.}  A.nother  point  essential  to  the  proper  entitling  of  a 
complaint,  ia  the  statement  of  "  the  name  of  the  county  in  which 
the  plaintiff  desires  the  trial  to  be  had."  In  courts  of  special 
jurisdiction,  i  uch  as  the  New  York  Superior  Court,  and  Court 
of  Common  Pleas,  this  precaution  is  not  necessary.  The  name 
of  the  COUTt  itself,  points  out,  with  certainty,  the  place  where  the 
trial  is  to  be  had.  In  all  other  cases,  however,  the  precaution 
is  absolutely  essential. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  367 

The  governing  sections  of  the  Code  on  the  subject  of  fixing 
the  venue,  are  123  to  125,  inclusive.  By  sec.  123,  actions  in 
respect  of  real  or  specific  personal  property,  must  be  tried  in 
the  county,  in  which  the  subject  of  the  action,  or  some  part  of 
that  subject,  is  situate,  and  the  venue  must  be  laid  accordingly; 
and,  by  sec.  124,  the  venue  as  to  actions  for  penalties  and  for- 
feitures, and  against  public  officers,  for  acts  done  in  the  execu- 
tion of  their  offices,  is  also  declared  to  be  local,  except  as  regards 
offences  committed  on  rivers,  &c,  between  two  counties,  in 
which  case,  the  action  may  be  brought  in  either.  In  foreclosure, 
the  venue  must  be  fixed  in  the  county,  or  in  one  of  the  counties 
in  which  the  mortgaged  premises  are  situate,  without  regard  to 
that  in  which  the  loan  was  actually  made.  Miller  v.  Hull,  3 
How.  325 ;  1  C.  E.  113.  The  foregoing  rules  do  not  apply, 
however,  to  actions  in  which  the  people  are  a  party.  In  these, 
the  venue  may  be  laid  in  any  county  in  the  State ;  so  held  in 
People  v.  Cook,  6  How.  448.  This  rule  seems  capable  of  being 
extended  so  as  to  create  great  hardship,  if  enforced  too  rigidly, 
and  in  all  cases. 

In  Auchincloss  v.  Nott,  12  L.  O.  119,  it  was  held  by  the  Supe- 
rior Court,  that  a  bill  for  specific  performance  of  a  contract  was 
not  a  local  action,  and,  accordingly,  that  the  court  had  juris- 
diction, though  the  estate  in  question  was  situate  in  another 
county. 

In  actions  not  of  a  local  nature,  the  venue  may  be  fixed  in 
any  county  in  which  the  parties,  or  any  of  them,  reside,  at  the 
commencement  of  the  action  ;  or,  if  none  of  the  parties  reside 
in  the  State,  the  plaintiff  is  at  liberty  to  designate  any  county 
he  may  choose.  •  In  all  these  cases,  however,  the  plaintiff's 
power  to  fix  the  venue,  is  subject  to  the  defendant's  right  to 
change  it,  if  improperly  fix'ed,  or  to  move  the  court  for  a  change 
on  other  grounds,  which  subjects  will  be  treated  of  hereafter. 
In  relation  to  actions  by  the  People,  see  The  People  v.  Cook, 
supra.  The  decision  in  that  case  proceeds  on  the  ground  that 
the  people  are  resident  in  every  county,  and  an  action  may 
accordingly  be  brought  in  their  name  in  any. 

Other  Formalities.'] — Attention  must  be  paid  to  the  number- 
ing of  the  folios,  and  the  separation  of  causes  of  actions,  under 
Rules  44  and  87,  before  referred  to.  See  heretofore  as  to  formal 
requisites  of  pleading. 


368      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 


§  125.  Statement  of  Cause  of  Action. 

General  Remarks.} — The  next  requisite  as  to  the  due  prepa- 
ration of  the  complaint,  is  that  prescribed  by  subdivision  2, 
with  reference  to  the  proper  statement  of  the  cause  of  action. 

The  observations  as  to  the  necessary  averments  of  fact  in  this 
pleading,  have,  in  a  great  measure,  been  anticipated  in  the  pre- 
ceding chapters.  It  remains,  then,  to  point  out  some  considera- 
tions applicable  to  the  proper  form  of  complaint,  separately  con- 
sidered, in  different  special  cases.  In  every  instance,  as  before 
observed,  the  statements  in  it  should  be  strictly  confined  to  facts, 
establishing,  or  tending  to  establish  the  main  cause  of  action,  or 
the  plaintiff's  right  to  some  peculiar  relief  arising  out  of  it,  and 
this  with  regard  to  the  essence  of  that  relief,  and  not  to  its  mere 
form  ;  nothing  collateral,  nothing  unconnected,  nothing  merely 
probative,  is,  strictly  speaking,  admissible  under  any  circum- 
stances. Whatever  be  the  state  of  facts  to  be  pleaded,  whether 
simple  or  complicated  in  its  nature,  those  facts  must  be  stated 
as  plainly  and  as  concisely  as  possible,  without  any  unnecessary 
or  avoidable  repetition  whatsoever ;  and  also  with  sufficient 
clearness,' so  as  to  give  the  court  adequate  data  on  which  to 
ground  a  judgment.  If  this  last  be  not  the  case,  demurrer  will 
lie.     Tollman  v.  Green,  8  Sandf.  437. 

The  main  grounds  of  objection,  to  be  more  peculiarly  guarded 
against  in  the  framing  of  the  complaint,  will  be  found  collected 
at  sec.  144  of  the  Code,  under  the  head  of  Demurrer.  See  here- 
after on  that  subject. 

The  plaintiff's  counsel  must  be  especially-  careful,  that  the 
facta  ou  which  the  jurisdiction  of  the  court,  or  the  plaintiff's 
i  it  to  sue  depends,  should  be  specially  and  plainly  averred, 
in  all  cases  which  admit  of  any  doubt  as  to  either.  All  facts 
necessary  to  confer  jurisdiction,  must,  of  necessity,  appear  upon 
the  record.  Frees  v.  Ford,  2  Sold.  170.  He  must  also  direct 
his  peculiar  attention  to  the  joinder  of  all  proper  parties,  and 
to  tli"  making  n  clear,  and,  above  all,  a  sufficient  statement  of 
of  action  sought  to  be  established,  taking 
ire  to  separate  and  classify  the  latter,  where  more 
than  on  I  to  be  enforced  in  the  same  proceeding. 

The  rules  with  reference  to  the  pleading  of  judgments,  pri- 
vate statutes,  or  the   performance  of  a  condition  precedent,  as 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.     369 

contained  in  sees.  161,  162,  and  163  of  the  Code,  and  before 
noticed,  will,  of  course,  be  borne  in  mind  in  the  framing  of  com- 
plaints where  allegations  of  those  natures  are  necessary. 

§  126.  Joinder  of  Causes  of  Action. 

Statutory  Provisions^] — By  section  167,  special  provisions  are 
made  upon  this  last  subject  as  follows  : 

§  167.  The  plaintiff  m-iy  unite  in  the  same  complaint  several  causes 
of  action,  whether  they  be  such  as  have  been  heretofore  denominated 
legal  or  equitable,  or  both,  where  they  all  arise  out  of 

1.  The  same  transaction,  or  transactions  connected  with  the  same 
subject  of  action  ; 

2.  Contract,  express  or  implied  ;  or 

3.  Injuries,  with  or  without  force,  to  person  and  property,  or 
either  ;  or 

4.  Injuries  to  character  ;  or 

5.  Claims  to  recover  real  property,  with  or  without  damages  for  the 
withholding  thereof,  and  the  rents  and  profits  of  the  same  ;  or 

6.  Claims  to  recover  personal  property,  with  or  without  damages  for 
the  withholding  thereof;  or 

7.  Claims  against  a  trustee,  by  virtue  of  a  contract,  or  by  operation 
of  law. 

But  the  causes  of  action,  so  united,  must  all  belong  to  one  of  these 
classes,  and  must  affect  all  the  parties  to  the  action,  and  not  require  dif- 
ferent places  of  trial,  and  must  be  separately  stated. 

Separation  of  Statements. ,]— By  Eule  87,  inserted  on  the  last 
revision,  it  is  now  prescribed  that  "  in  all  cases  of  more  than  one 
distinct  cause  of  action,"  &c.r  "  the  same  shall  not  only  be  sepa- 
rately stated,  but  plainly  numbered."  This  practice,  which  had 
already  become  general,  owing  to  its  obvious  advantages,  is  now 
imperative.  See  this  subject  heretofore  considered,  and  the 
cases  of  Blanchard  v.  Strait;  Getty  v.  Hudson  River  Railroad 
Company]  Benedict  v.  Bake,  and  Lippincott  v.  Goodwin,  there 
referred  to.  See  likewise  Sjiencer  v.  Wheelaclc,  11  L.  0.  329,  in 
which  the  complaint  was  clearly  bad  on  that  ground. 

In  Benedict  v.  Seymour,  6  How.  298,  it  is  held  that,  where 
several  causes  of  action  are  joined  in  one  complaint,  they  must 
be  properly  separated  and  distinctly  averred  :  the  words,  "  and 
for  a  further  cause  of  action  the  plaintiff  complains,"  &c,  being 
suggested,  though  not  imperatively,  as  the  proper  mode  of  sepa- 
42 


370  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

ration.  If  this  be  omitted,  every  allegation,  not  essential  to  a 
single  cause  of  action,  must,  if  objected  to,  be  stricken  out  as 
redundant.  Whether  this  severely  technical  view  is  fully  sus- 
tainable, remains  to  be  settled  hereafter ;  and  doubtless,  in  the 
event  of  any  motion  under  these  circumstances,  leave  to  amend 
would  be  given.  There  can  be  no  question,  however,  but  that 
the  form  of  complaint  here  prescribed  is  at  once  the  simplest 
and  the  most  expedient,  and  that  the  wisest  course  will  be  to 
follow  implicitly  the  directions  given,  when  possible. 

The  necessity  of  complying  with  the  above  provision,  and 
separately  stating  different  causes  of  action  coming  under  the 
same  head,  is  demonstrated  by  the  case  of  Durkee  v.  The  Sara- 
toga and  Washington  Railroad  Company,  4  How.  226,  subse- 
quently cited  under  the  head  of  Demurrer,  in  which  the  com- 
plaint was  held  to  be  bad  on  that  ground. 

In  Pike  v.  Van  Wormer,  5  How.  171,  the  same  principle  is 
applied  to  cases  of  slander,  and  it  is  laid  down,  that  separate 
statements  under  the  Code  are  equivalent  to  the  separate  counts 
of  a  declaration  under  the  old  practice. 

In  White  v.  Low,  7  Barb.  204,  it  seems  to  have  been  consi- 
dered that  an  action  could  not  lie,  by  the  endorsee  of  a  note, 
against  the  makers  and  endorsers  jointly.  The  causes  of  action 
do  not,  in  that  case,  appear  to  have  been  separately  stated.  If 
they  had  been  so,  there  can  be  no  doubt  but  that  the  reverse 
would  have  been  held. 

Joinder  generally  considered.'] — The  question  as  to  the  possibi- 
lity of  including  claims  for  legal  and  equitable  relief  in  the 
same  pleading,  before  settled,  or  nearly  so,  is  now  put  out  of 
doubt  by  the  changes  effected  in  the  earlier  part  of  the  section. 

Subdivision  1  of  sec.  167,  as  above  cited,  was  inserted  on  the 
last  amendment  of  the  Code,  and  extends  the  possibility  of 
joinder  of  causes  of  action,  to  an  almost  indefinite  extent,  when 
arising  OUl  of  the  same  transaction  ;  except  in  so  far  as  that  sub- 
division lb  controllable  by  the  supplementary  clause  at  the  end 

of  the  section. 

That  it  is  SO  controlled,  was  held  in  Tompkins  v.  White,  8  How. 
520,  where  tin1  joinder  of  two  claims,  in  respect  of  the  same 
premises,  the  one  against  both  defendants,  for  recovery  of  pos- 
session and  damages,  tin1  other  against  one  only,  for  rents  re- 
ceived, was  held  to  be  incompatible;  and  a  demurrer  was  sus- 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  371 

tained,  on  the  above  ground,  and  likewise  on  that  of  the  incon- 
sistency of  such  causes  of  action. 

It  has  been  likewise  held  that  the  same  subdivision  only  com- 
prises such  causes  of  action  as  are  consistent  with  each  other, 
and  not  such  as  are  contradictory.  Thus,  in  Smith  v.  Hallock, 
8  How.  73,  it  was  held  that  the  plaintiff  could  not  seek  to  reco- 
ver, in  the  same  action,  the  possession  of  a  piece  of  land  held 
by  the  defendant  under  a  lease,  and  likewise  damages  for  ob- 
structing a  right  of  way  over  part  of  it,  claimed  by  the  plain- 
tiff, as  not  comprised  in  the  lease  there  in  question. 

In  Hulce  v.  Thompson,  too,  9  How.  113,  it  was  held  that  two 
causes  of  action,  the  one  in  ejectment  for  a  house  and  one  part 
of  a  farm,  and  the  other  for  trespass  on  other  portions  of  the 
same  property,  committed  by  the  same  defendant,  who  occupied 
both,  were  not  connected  with  the  same  subject  of  action,  and, 
as  such,  were  improperly  united ;  and  a  demurrer  was  allowed 
accordingly.  , 

The  same  doctrine  as  to  the  impossibility  of  uniting  incom- 
patible causes  of  action  had  been  held,  previous  to  the  amend- 
ment, in  Alger  y.  Scoville,  6  How.  131,  1  C.  E.  (K  S.)  303,  with 
an  express  view  to  which  decision,  the  amendment  in  question 
would  appear  to  have  been  passed.  In  that  case  the  question 
of  demurrer,  on  the  ground  of  misjoinder  of  causes  of  action, 
is  treated  at  great  length.  The  view  sought  to  be  enforced  by 
the  plaintiff's  counsel  was,  that  any  number  of  causes  of  action, 
primarily  arising  out  of  contract,  however  diverse  and  incon- 
sistent the  nature  of  the  contracts  sought  to  be  enforced  might 
be,  were  capable  of  being  joined  in  one  complaint,  as  all  falling 
within  the  terms  of  subdivision  1,  of  1851 ;  and  this,  although 
some  of  such  causes  of  action  did  not  affect  the  whole  of  the 
defendants,  but  only  some  of  them  individually,  in  separate  capa- 
cities; and  although  some  of  them  were  moreover  classifiable 
under  other  divisions  of  the  section,  and  in  particular  as  claims 
against  a  trustee,  under  subdivision  7  :  although  all  might  be 
said,  in  some  manner  or  other,  to  arise  out  of  "  contract,  express 
or  implied."  This  view  was  .most  emphatically  overruled  by 
the  court,  the  following  principles  being  laid  down  in  the  course 
of  the  decision  :  "A  legitimate  construction  of  this  section,  will 
not  permit  the  joining  of  causes  ©f  action,  which  belong  to 
more  than  one  class.  Although  many  actions  for  the  recovery 
of  real  or  personal  property  arise  out  of  contract,  still,  they  are 


372  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

not  to  be  united  with  a  simple  contract  for  the  payment  of 
money.  Each  subdivision  must  be  interpreted  with  reference 
to  the  others,  and  the  provision  made  in  the  5th  and  6th,  for 
the  recovery  of  real  and  personal  property,  to  which  title  is 
given  by  contract,  shows  that  the  legislature  did  not  intend  to 
include  those  contracts  in  the  first  class;  otherwise,  many 
actions  would  fall  under  more  than  one  head,  and  the  different 
classes  run  into  each  other ;  and  thus  the  object  of  classification 
would  be  defeated." 

•  The  last  clause  of  the  section  is  then  referred  to,  as  fixing 
the  meaning  of  the  legislature,  in  terms  which  cannot  be  mis- 
understood,  and  as  "equivalent  to  saying  that  every  cause  of 
action  belongs  but  to  one  class,  and  expressly  forbidding  the 
union  of  causes  belonging  to  different  classes;"  and  the  practi- 
cal inconvenience  of  different  issues  being  joined  in  the  same 
action,  some  triable  by  a  jury,  and.  others  by  the  court,  is 
strongly  enforced. 

Separate  demurrers  of  the  different  defendants,  on  the  ground 
of  the  joinder  of  causes  of  action,  some  arising  out  of  ordinary 
money  contracts,  and  others  against  trustees,  as  such;  and  like- 
wise on  the  ground  that  such  causes  did  not  jointly  affect  all 
the  parties  to  the  action,  were  therefore  allowed,  and  judgment 
given  accordingly. 

The  authority  of  this  case  is  unquestionably  shaken,  to  a  great 
extent,  by  the  amendment  of  the  section,  and  the  insertion  of 
subdivision  1,  as  it  now  stands;  under  which,  there  seems  no 
doubt  as  to  the  power  of  uniting,  in  the  same  proceeding,  any 
number  of  causes  of  action,  arising  out  of  the  same  transaction, 
however  inconsistent  such  joinder  may  be  with  the  general 
principles' of  pleading,  as  theretofore  established. 

The  principles  as  to  the  impossibility  of  uniting  causes  of 
action,  which  are  practically  incompatible,  as  laid  down  m  Alger 
v.  Scoville,  seem,  on  the  contrary,  to  be  sound,  and  to  subsist 
still,  notwithstanding  the  amendment;  and  this  view  is  con- 
firmed by  the  recent  decisions  above  cited.  On  that  amendment, 
the  word  "only,"  on  which  great  stress  was  laid  in  Alger  v. 
Scoville,  '..ii  out,  of  the  concluding  sentence;    but  this 

alteration    ■■          to  be   little,  if  at  all,  more  than   a  change  in 
■  words,  as  they  at  present  stand,  seem  certain- 
ly capable  of  bearing  the  instruction,  if  no  more;  and  it 
WOllld,  indeed,  lie  a  matter  of  difficulty  to  contend  that  such  is 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  373 

not  still  their  sound  interpretation.  Independent  of  the  above 
considerations,  and  even  assuming  that  the  views  on  which  the 
recent  amendments  appear  to  be  grounded  are  sustainable  to 
their  full  extent,  the  decision  in  Alger  v.  ScovlUe  seems  unassail- 
able, under  the  particular  circumstances  of  that  case,  on  the 
ground  that  all  the  causes  of  action  there  joined,  did  not  affect 
all  the  parties  to  the  action,  some  of  them,  on  the  contrary, 
affecting  some,  and  others,  others  of  the  defendants  only,  in 
separate  capacities. 

In  Calioon  v.  Bank  of  Utica,  7  How.  134,  a  still  more  restricted 
view  was  taken  than  in  Alger  v.  Scoville,  and  on  similar  grounds; 
but  that  decision  seems  clearly  unsustainable,  and  was  reversed 
by  the  Court  of  Appeals,  in  Cahoon  v.  The  Bank  of  Utica,  Court 
of  Appeals,  30th  December,  1852,  7  How.  401,  on  the  ground 
that  the  case  was  clearly  one  in  which  the  different  objects  pro- 
posed might  all  have  been  combined,  in  one  suit  in  equity,  under 
the  old  practice. 

The  following  cases,  decided  prior  to  the  amendment  in  ques- 
tion, seem  clearly  deprived  of  their  authority  by  its  terms: 

The  first  of  these  is  Be  Bidder  v.  iSchzrmerhorn,  10  Barb.  638, 
in  which  it  was  held  that  causes  of  action  against  a  debtor,  on  a 
sealed  contract,  and  a  guarantor  of  the  debt,  by  another  sealed 
instrument,  on  the  same  paper,  could  not  be  joined.  The 
authority  of  this  decision  seems  indeed  doubtful,  even  under  the 
law  as  it  stood  before,  and  without  regard  to  the  amendment. 

It  is  in  direct  conflict  with  Enos  v.  Thomas,  4  How.  48.  In 
that  case,  a  contract  had  been  entered  into  by  one  instrument, 
and  a  guaranty  for  payment  of  the  amount  due  added  at  its 
foot,  and  both  principal  and  surety  were  sued  thereon  in  the 
same  action;  under  which  circumstances,  a  demurrer,  on  the 
ground  of  misjoinder,  was  overruled,  it  being  held  that  the  two 
instruments,  taken  together,  were  to  be  regarded  as  one  trans- 
action, and,  consequently,  as  forming  only  one  cause  of  action. 
Enos  v.  Thomas,  4  How.  48. 

The  next  decision  falling  under  this  class. is  Cobb  v.  Boivs,  9 
Barb.  230,  in  which  similarly  restricted  views  to  those  above 
noticed  were  taken,  in  relation  to  the  impossibility  of  suing  for 
the  value  of  goods  converted  by  the  defendant,  on  the  ground 
that  such  an  action  sounds  partly  in  tort,  and  partly  in  contract. 
The  same  is  the  case  with  regard  to  Furniss  v.  Brown,  8  How. 
59,  in  which  a  demand  for  specific  performance  of  a  contract, 


374  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

and  for  delivery  of  its  subject-matter,  and  a  claim  for  damages 
in  respect  of  a  delay  in  that  performance,  were  held  to  be 
incapable  of  joinder  in  the  same  action.  See,  too,  Pugsley  v. 
Aikin,  14  Barb.  114,  where  a  complaint  against  executors,  for 
the  occupation  of  the  same  premises,  partly  by  the  testator, 
and  partly  by  themselves,  as  executors,  since  his  death,  was 
also  held  bad  for  misjoinder. 

Lastly,  in  /Spencer  v.  Wheeloclc,  11  L.  O.  329,  the  joinder  of 
causes  of  action  against  a  debtor  under  simple  contract,  and  his 
guarantor  by  instrument  in  writing,  was  held  to  be  incompatible, 
in  a  complaint  framed  as  for  a  common  law  recovery,  and  on 
one  single  count,  against  both  parties.  The  complaint  in  that 
case  was  doubtless  bad,  for  want  of  separation  of  the  distinct 
causes  of  action ;  but,  in  other  respects,  the  doctrine,  as  there 
laid  down,  seems  very  questionable,  and  entirely  inconsistent 
with  the  subdivision  now  in  question,  which  does  not  appear  to 
have  been  noticed,  either  by  counsel  or  by  the  court. 

In  the  following  cases,  the  general  principle,  as  laid  down  in 
that  subdivision,  is  recognized: 

In  Bogardus  v.  Parker,  7  How.  305,  it  was  held  that,  in  a  suit  for 
a  partition,  an  account  might  be  taken  in  respect  of  a  defend- 
ant's alleged  rights  to  a  specific  lien  on  the  premises,  and  that 
claims  on  the  property  might  be  disputed  as  between  co-defend- 
ants, and  tried  and  settled  in  the  same  action,  if  those  claims 
involved  interests  in,  or  liens  on  the  property  sought  to  be 
partitioned. 

In  Ricart  v.  Townsend,  6  How.  460,  it  was  held  no  misjoinder, 
to  unite  the  survi  ving  partner  with  the  representatives  of  another 
deceased,  in  an  action  on  a  contract  of  the  former  copartner- 
ship. 

In  Rodger8  v.  Podgers,  11  Barb.  595,  it  was  held  that  a  rever- 
sioner might  combine  in  the  same  proceeding  against  the  tenant 
for  life,  a  cause  of  action  for  wrongfully  cutting  wood,  and  also 
one  for  conversion  of  the  wood,  when  cut,  where  such  causes 
affect  the  Bame  parties. 

An  action  against  the  personal  representatives,  and  also  the 
devisees  and  heirs  of  the  same  testator,  to  recover  a  debt  due 
from  his  estate,  will  clearly  be  bad,  even  though  the  same  par- 
ties be  entitled  to  the  whole  property,  both  real  and  personal. 
The  statute  is  imperative,  and  requires  the  creditor,  inallcases, 
to  resort  to  the  personalty  in   the   first  instance,  and  to  the 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.      375 

descended  real  estate  in  the  second,  before  resorting  to  property 
in  the  hands  of  devisees.  The  joinder  in  the  same  pleading  of 
causes  of  action  against  parties  standing  in  these  three  several, 
and,  as  it  were,  successive  capacities,  is  therefore  clearly  incom- 
patible, and  cannot  be  effected.  Stewart  v.  Kissarn,  11  Barb. 
271.     See,  likewise,  Roe  v.  Swezey,  10  Barb.  247. 

The  fusion  of  subdivisions  2  and  3,  of  1851,  into  subdivision 

3  of  the  present  measure,  carries  out  the  views  previously  laid 
down  to  the  same  effect  in  Howe  v.  Pechham,  6  How.  229,  10 
Barb.  656,  1  C.  K.  (N.  S.)  381,  and  Qrogan  v.  Lindeman,  1  C. 
R.  (1ST.  S.)  287,  where  claims  for  damages  in  respect  of  personal 
injury,  consequential  upon  injuries  to  property  forming  the  main 
subject  of  the  suit,  were  held  to  be  capable  of  joinder  in  one 
complaint,  as  forming  part  of  one  entire  cause  of  action,  and 
incapable  of  being  separately  asserted.    See  Sheldon  v.  Carpenter, 

4  Comst.  579. 

In  reference  to  subdivision  4,  it  has  been  held  that  a  cause  of 
action  for  malicious  prosecution  may  be  joined  with  one  for 
slander;  they  are  both  "injuries  to  character."  Watson  v. 
Hazard,  3  C.  R.  218.  "Crim.  con."  has  been  held  to  be  an 
injury  to  the  person,  and  to  fall,  as  such,  within  subdivision  2. 
Delamater  v.  Russell,  4  How.  234;  2  C.  R.  147. 

The  questions  as  to  misjoinder  of  parties,  will  be  found  further 
treated  of  under  the  head  of  Demurrer. 

With  reference  to  the  above  classification,  the  division  to 
which  the  action  will  be  ultimately  held  to  belong,  will  be 
determined  by  the  nature  of  the  relief  demanded  in  the  com- 
plaint. Spalding  v.  Spalding,  3  How.  297,  1  C.  R.  64;  Dows  v. 
Green,  3  How.  377.  See,  likewise,  Rodgers  v.  Rodgers,  11  Barb. 
595. 

In  Maxwell  v.  Farnam,  7  How.  236,  it  was  held  that  a  plain- 
tiff cannot  so  frame  his  complaint  to  recover  the  possession  of 
personal  property,  as  that,  if  he  fail  to  recover  the  property 
itself,  he  can  obtain  damages  for  its  conversion ;  and  the  com- 
plaint in  that  case,  seeking  a  re-delivery,  and  also  damages  for 
conversion,  was  held  bad  on  demurrer.  In  Spalding  v.  Spalding^ 
and  Dows  v.  Green,  above  noticed,  a  similar  course  was  attempted 
by  the  plaintiffs.  In  both  these  cases,  judgment  was  demanded 
for  the  value  of  property  unjustly  detained,  thus  bringing  the 
action  under  subdivision  3,  but  subsequent  proceedings  were 
instituted,  in  order  to  recover  possession  of  the  property  itself, 


376      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

which,  if  allowed,  would  have  brought  the  case  under  sub- 
division 6 ;  such  subsequent  proceedings  were  accordingly  set 
aside,  on  the  principle  above  stated.  In  Otis  v.  Sill,  8  Barb.  102, 
it  was,  in  like  manner,  held  that  a  claim  for  a  specific  equitable 
lien  upon  property,  could  not  be  enforced  in  an  action  to  recover 
possession  thereof. 

The  same  principle  also  prevailed  in  the  case  of  Cahoon  v. 
The  Bank  of  Utica,  4  How.  423,  3  C.  E.  110,  in  which  it  was 
decided,  that  a  claim  for  money  had  and  received,  could  not  be 
joined  in  the  same  complaint  with  one  founded  on  a  refusal  to 
deliver  up  certain  promissory  notes,  alleged  to  have  been  satis- 
fied; though  both  claims  arose  out  of  the  same  transaction ;  and 
the  case  of  the  Commercial  Bank  Y.White,  3  How.  292,  1  C.  R. 
68,  is  precisely  to  the  same  effect. 

This  last  conclusion  is,  however,  clearly  overruled.  It  was 
reasserted  in  another  case  of  Cahoon  v..  The  Bank  of  Utica,  7 
How.  134,  but  distinctly  reversed  by  the  Court  of  Appeals,  30th 
December,  1852,  7  How.  401,  as  above  noticed.  The  other 
cases  above  referred  to,  in  relation  to  replevin,  seem  also  open 
to  a  similar  qualification,  with  reference  to  subdivision  1,  as  it 
now  stands. 

In  Pettit  v.  King,  decided  by  the  Court  of  Appeals,  31st  Dec, 
1852,  it  was  held  that  the  plaintiff  could  not  recover  in  trover, 
when  the  evidence  showed  a  rightful  sale  of  the  property  in 
question  by  the  defendant,  as  a  trustee,  but  a  detention  of  the 
surplus  produce;  a  claim  against  a  trustee  cannot  be  united  in 
the  same  action  with  one  for  the  wrongful  conversion  of  pro- 
perty. 

§   127.     Right  of  Plaintiff  to  sue. 

The  general  aspect  of  this  question,  and  the  various  rights  of 
parties  to  commence  an  action,  when  laboring  under  disability, 
or  acting  in  right  of  others,  have  already  been  fully  considered, 
and  Qumi  rous  ca  es  in  relation  thereto  cited,  in  a  previous  chap- 
ter, under  the  bead  of  Parties,  to  which  the  reader  is  therefore 
referred. 

In  addition  to  the  instances  there  stated,  a  few  more  matters 
in  this  connection  require  consideration,  which  fall  appro- 
priately under  i  be  prei  ent  head. 

The  complaint  In  an  action  must  conform  to  the  summons, 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  377 

and  a  variance  between  them  will  be  fatal.  Thus,  where  the 
plaintiff  issued  the  summons  as  administrator,  but  framed  his 
complaint  as  suing  in  his  own  right,  the  proceedings  were  set 
aside  on  the  above  ground.    Blanchard  v.  Strait,  8  How.  83. 

It  is  competent  for  a  plaintiff,  if  he  so  think  fit,  to  waive  tort, 
and  sue  upon  contract  in  respect  of  the  same  transaction,  as 
under  the  old  practice.    Hinds  v.  Tweddle,  7  How.  278. 

An  action  against  both  of  the  parties  to  a  joint  and  several 
contract,  binding  them  not  to  exercise  a  certain  trade  within 
certain  limits,  was  held  to  be  unsustainable,  on  allegations  of  a 
breach  by  one  of  them  only,  and  a  demurrer  was  allowed 
on  that  ground.     Lawrence  v.  Kidder,  10  Barb.  641. 

Where  two  partners  had  agreed  to  dissolve  copartnership, 
and  that  the  concerns  of  the  firm  should  be  wound  up  by  one 
of  them  only,  it  was  held  that,  pending  that  winding  up,  the 
other  partner  could  not  institute  proceedings  for  the  appoint- 
ment of  a  receiver,  no  fraud  being  alleged.  Weber  v.  Defor,  8 
How.  502. 

In  Costigan  v.  Newland,  12  Barb.  456,  it  was  held  that  an 
agent,  holding  moneys  in  his  hands,  which  his  principal  was 
in  effect  liable  to  pay  over  to  a  third  party,  was  not  responsible 
to,  and  could  not  be  sued  by  the  latter,  though  notified  of  his 
claim.  To  his  principal,  however,  an  agent  who  has  received 
and  neglected  to  pay  moneys  over,  is  directly  responsible,  and 
can  be  sued  without  any  previous  demand.  Ilickok  v.  Hickok, 
13  Barb.  632. 

One  agent  or  servant  of  a  common  employer  cannot,  as  a 
general  rule,  maintain  an  action  against  such  employer,  for 
injury  sustained  by  reason  of  the  misfeasance  or  negligence  of 
other  parties,  standing  in.  the  same  capacity.  Sherman  v.  Ro- 
chester and  Syracuse  Railroad  Company,  15  Barb.  574. 

Where,  though,  the  employer  is  himself  chargeable  with  any 
negligence  in  respect  of  the  facts  out  of  which  such  injury  arose, 
this  rule  will  not  hold  good.  It  only  applies  to  those  cases 
where  the  accident  happened  without  any  actual  fault  of  the 
principal,  either  in  the  act  which  caused  the  injury,  or  in  the 
selection  and  employment  of  the  agent  by  whose  fault  it  hap- 
pens. Keegan  v.  The  Western  Railroad  Company,  Court  of  Ap- 
peals, 12th  April,  1853. 

Where,  however,  injuries  happened  to  third  parties,  through 
the  negligence  of  sub-contractors,  employed  by  the  party  who 


378  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

held  the  preceding  contract,  it  was  held  that  the  original  em- 
ployers were  not  liable.  Pack  v.  The  Mayor  of  New  York,  Court 
of  Appeals,  12th  April,  1853;  Gent  v.  The  same,  same  court, 
18th  April,  1854. 

In  The  Mutual  Insurance  Company  of  Buffalo  v.  Eaton,  11  L. 
O.  140,  it  was  held  that  an  Insurance  Company,  who  had  paid  a 
loss  occasioned  by  collision,  could  not  maintain  an  action  in 
their  own  name  against  the  wrong-doer;  but  that  such  an 
action  could  only  be  brought  in  the  name  of  the  owner  of  the 
property  injured;  it  being  further  held,  that  the  company, 
under  such  circumstances,  has  a  right  to  bring  an  action  in  that 
form,  on  indemnifying  the  actual  plaintiff,  and  would  be  pro- 
tected against  his  acts.  A  demurrer  was  accordingly  allowed 
on  that  ground. 

In  Cook  v.  Genesee  Mutual  Insurance  Company,  8  How.  514,  it 
was  held  that  one  of  several  assignees  of  an  entire  demand, 
might  maintain  a  separate  action,  in  the  nature  of  a  suit  in 
equity  to  recover  his  part. 

An  administrator  may  sue  on  a  promissory  note,  made  to  him 
as  such,  either  in  his  private  or  his  representative  capacity. 
And,  in  an  action  under  the  Code,  it  is  not  necessary  for  him 
to  make  profert  of  his  letters  of  administration.  Bright  v.  Currie, 
5  Sandf.  433  ;  10  L.  O.  104.  In  Merritt  v.  Seaman,  2  Seld.  168, 
the  same  doctrine  is  laid  down,  as  to  the  right  of  an  executor 
to  sue,  at  his  election,  under  similar  circumstances. 

A  party,  acting  as  next  friend  of  a  plaintiff  under  disability, 
will  not  be  concluded  as  to  his  own  rights  in  the  premises,  by 
reason  of  his  allowing  his  name  to  be  made  use  of  in  that  capa- 
city.   Darwin  v.  Hatfield,  Court  of  Appeals,  30th  Dec,  1852. 

An  action  will  not  lie  upon  a  voluntary  subscription  paper. 
It  is  a  mere  nudum  pactum,  with  no  consideration  to  uphold 
such  a  promise.    Stoddard  v.  Cleveland,  4  How.  148. 

A  subscription  to  the  stock  of  a  company,  formed  for  a  profit- 
able  object,  and  which  entitles  the  party  to  shares  in  the  under- 
taking,  does  not,  however,  fall  within  this  category,  and  an 
action  can  be  maintained  upon  it.  Oswego  and  Syracuse  Plank 
Hond,  ('unifa,,!/  v.  A'"-/,  5  Bow.  390.  The  defendants  were  also 
there  beld  to  be  precluded  from  questioning  the  plaintiffs'  legal 
existence  as  :i  corporation,  by  having  subscribed  for  their 
stock.  See  Dutchess  Cotton  Manufactory  v.  Davis,  14  Johnson,  238. 
The  allegation  that  the  defendants  subscribed  for  their  shares, 


COMPLAINT  AND  COLLATERAL  PROCEEDINGS.      379 

was  held  to  imply,  legally,  that  they  were  the  owners  of  and 
entitled  to  such  shares,  and  to  render  a  specific  allegation  of 
consideration,  by  virtue  of  the  subscription,  unnecessary. 

In  Barnes  v.  Perine,  15  Barb.  249,  it  was  held  by  the  general 
term,  that  a  subscription  paper  for  the  erection  of  a  church 
edifice  could  be  upheld,  and  an  action  maintained  upon  it,  as  a 
common  law  contract,  on  parol  evidence  of  actual  consideration 
having  been  given,  though  otherwise  unsustainable ;  and,  evi- 
dence being  given  in  that  case,  that  the  trustees  of  the  church 
had  removed  and  rebuilt  the  church  in  question,  on  the  faith 
of  the  subscription  paper  there  sued  upon,  an  action  upon  it 
was  maintained.  See  decision  at  special  term,  to  same  effect, 
reported  9  Barb.  202. 

In  Dambman  v.  The  Empire  Mill,  12  Barb.  341,  it  was  held 
that  it  was  competent  for  a  general  creditor  of  an  insolvent  cor- 
poration to  institute  a  suit,  and  to  apply  for  a  receiver  of  its 
effects,  under'  the  general  powers  of  the  court,  and  without 
reference  to  the  provisions  of  the  Eevised  Statutes,  which  give 
a  similar  remedy,  on  petition,  to  the  holder  of  a  judgment  and 
unsatisfied  execution  against  a  body  so  situated. 

An  action  under  the  statute  of  1847,  in  respect  of  the  death 
of  a  party,  caused  by  the  negligence  of  a  steamboat  company, 
is  properly  brought  by  the  personal  representative,  though  the 
existence  of  parties  who  have  sustained  a  pecuniary  loss  must 
be  averred.    Safford  v.  Drew,  12  L.  0.  150. 

In  relation  to  corporations  in  general,  the  following  decisions 
have  been  made : 

The  Board  of  Health  of  the  city  of  New  York  is  not  a  body 
corporate,  or  capable  of  being  sued  as  such.  Gardner  v.  The 
Board  of  Health,  4  Sandf.  153.  Affirmed  by  Court  of  Appeals, 
30th  Dec,  1852. 

A  member  of  an  incorporated  association  cannot  maintain  an 
action  in  his  own  name,  as  such,  for  the  benefit  of  the  associa- 
tion, without  showing  his  right  to  sue  affirmatively.  The  gene- 
ral agent  of  such  a  society  is,  however,  competent  to  do  so,  in 
his  character  of  trustee.     HaLicht  v.  Pemberton,  4  Sandf.  657. 

The  trustee  of  a  company,  not  a  corporation,  to  whom  or  to 
their  successors  in  office,  a  note  is  made  payable  by  name,  may 
however  maintain  an  action  on  it,  though  others  may  have  suc- 
ceeded them  as  trustees.     Davis  v.  Garr,  2  Seld.  124. 

The  proceedings  of  an  inferior  tribunal  of  a  municipal  cor- 


380  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

poration  cannot  be  reviewed  in  an  action  for  that  purpose,  or 
otherwise  than  by  certiorari,  addressed  to  the  subordinate  body. 
Bouton  v.  The  C  ity  of  Brooklyn,  7  How.  198;  15  Barb.  375. 

One  foreign  corporation  cannot  sue  another  by  attachment, 
unless  the  cause  of  action  has  arisen,  or  the  subject  of  the  action 
be  situate  within  the  State.  The  Western  Bank  v.  The  City  Bank 
of  Columbus,  7  How.  238. 

In  relation  to  the  doctrine  of  res  judicata,  and  how  far  a  prior 
recovery  or  award  will  or  will  not  act  as  a  bar  to  a  subsequent 
suit  in  respect  of  the  same,  or  of  collateral  matters,  see  here- 
after in  the  chapter  on  Answer,  under  the  head  of  defensive 
allegations. 

§   128.  Averments  of  Fact,  generally  considered. 

The  question  as  to  the  joinder  of  causes  of  action,  and  the 
rights  of  plaintiffs  to  sue,  having  thus  been  disposed  of,  the  next 
that  presents  itself  for  a  brief  notice,  is  that  as  to  averments  of 
fact  in  a  complaint,  generally  considered,  though  this  subject 
has,  in  a  great  measure,  been  anticipated  in  a  preceding  division 
of  the  Avork. 

Facts,  not  Conclusions,  or  Evidence.~] — The  facts  of  the  plaintiff's 
case  form,  and  form  alone,  the  proper  subjects  of  averment  in 
the  complaint;  and  conclusions  of  law  necessarily  arising  there- 
out, as,  for  instance,  a  promise  to  pay,  in  the  case  of  goods  sold 
and  delivered,  or  indebtedness,  where  the  facts  themselves  show 
the  defendant  to  be  indebted,  need  not  be  formally  alleged. 

The  general  principle  on  this  subject  is  laid  down  in  Olenny 
v.  Hitchim,  A-.  How.  98,  2  C.  E.  5G,  in  the  following  words: 
"Now,  the  complaint  is  good  if  it  contain  a  statement  of  the 
facts  constituting  the  cause  of  action,  in  ordinary  language.  A 
detail  of  the  evidence  of  facts  on  the  one  hand,  and  legal  infer- 
ences on  the  other,  arc  to  be  alike  avoided."  The  complaint  in 
that  ca  e  was  for  salt-  and  delivery  of  goods,  and  was  demurred 
to  as  containing  do  allegations  of  liability,  or  of  a  promise  to  pay ; 
but  such  demurrer  was  overruled,  inasmuch  as  both  arc  mere 
conclusions  of  law,  to  be  drawn  from  tlje  facts  as  pleaded,  and 

are,  therefore,  nol  n arj  to  I"-  averred. 

In  Tucker  v.   Ruehton,  2  0.  R.  59,  7  L.  0.815,  similar  princi- 

are  Laid  down,  and  a  pleading,  omitting  any  allegations  of 

value  of  goods  furnished  to  the  defendant,  or  of  a  promise  to 


COMPLAINT,  ATS"D  COLLATERAL  PROCEEDINGS.  331 

pay  for  them,  was  sustained,  though  commented  upon  as  care- 
lessly drawn.  In  Neefus  v.  Kloppenburgh,  2  C.  E.  76,  the  com- 
plaint alleged  that  the  defendant  was  "indebted  to  the  plaintiff 
on  an  account  for  flour  sold  and  delivered,"  &c,  and.  was  de- 
murred to,  on  the  ground  that  the  legal  conclusion  was  thereby 
pleaded,  and  not  the  facts.  This  demurrer  was  stricken  out  as 
frivolous,  at  special  term ;  but  the  general  term  reversed  the 
order,  on  the  following  grounds:  "  The  Code  prescribes  the  form 
of  the  complaint.  It  is  not  to  contain  results  or  conclusions  of 
law,  but  the  facts  themselves,  out  of  which  the  conclusion 
arises.  In  this  case,  the  sale  and  delivery  are  the  facts  which 
constitute  the  cause  of  action,  the  indebtedness  is  the  result." 
The  court,  though  refusing  to  pronounce  the  demurrer  frivo- 
lous, gave,  however,  no  opinion  as  to  its  ultimate  fate. 

The  view  taken  in  the  above  cases,  is  strongly  enforced  in 
Milliken  v.  Oarey,  5  How.  272,  8  C.  C.  250,  before  cited.  Eno 
v.  WoodworthyA  Comst.  249,  1  C.  E.  (N.  S.)  262,  is  likewise  de- 
cisive authority  to  the  same  effect.  It  is  also  sustained  in 
Hoxie  v.  Cushman,  7  L.  0.  1-19 ;  Castles  v.  Woodhoitse,  1  C.  E. 
72  ;  and  Anon.  8  How.  406,  subsequently  cited  under  the  head 
of  Answer.  "Where,  however,  indebtedness  is  stated  as  a  fact, 
and  not  as  a  conclusion  of  law,  a  denial  of  it  may  form  a  pro- 
per subject  of  averment  in  the  answer.  See  Anon.  2  C.  E.  67, 
also  there  cited. 

In  Oarvey  v.  Foivler,  4  Sandf.  665,  10  L.  0.  16,  the  following 
general  principles  are  laid  down,  on  the  subject  of  the  framing 
of  complaints,  under  the  Code.  After  laying  down,  as  one  of 
the  merits  of  that  measure,  that  the  system  of  general  aver- 
ments, which  conveyed  no  information  to  the  opposite  party,  is 
abolished,  the  learned  judge  proceeds  as  follows:  "The  plain- 
tiff must  now  state  in  his  complaint  all  the  facts  which  consti- 
tute the  cause  of  action  ;  and  I  am  clearly  of  opinion  that  every 
fact  is  to  be  deemed  constitutive,  in  the  sense  of  the  Code,  upon 
which  the  right  of  action  depends.  Every  fact  which  the  plain- 
tiff must  prove  to  enable  him  to  maintain  his  suit,  and  which  the 
defendant  has  a  right  to  controvert  in  his  answer,  must  be  dis- 
tinctly averred,  and  every  such  averment  must  be  understood 
as  meaning  what  it  says,  and,  consequently,  is  only  to  be  sus- 
tained by  evidence  which  corresponds  with  its  meaning." 

Similar  principles  to  the  above  will  be  found  enounced  on  the 
subject  of  Answer  or  Eeply,  in  Beers  v.  Squire,  1  C.  E.  84;  Pin-- 


382      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

son  v.  Cooley,  1  C.  B.  91 ;  McMurray  v.  Gifford,  5  How.  14 ;  Mier 
v.  Cartledge,  8  Barb.  75 ;  4  How.  115 ;  2  C.  E.  125 ;  Mullen  v. 
Karney,  2  C.  E.  18 ;  Bentley  v.  Jones,  4  How.  202 ;  Bussell  v. 
Clapp,  4  How.  347  ;  7  Barb.  482 ;  3  C.  E.  64;  Barton  v.  Sackett, 
3  How.  358 ;  1  C.  E.  96 ;  Benedict  v.  Bake,  6  How.  352 ;  and 
other  cases  also  before  and  subsequently  cited. 

In  the  more  recent  case  of  Mann  v.  Moreioood,  5  Sandf.  557, 
the  principle  is  stated  as  follows :  "A  complaint  must  state  the 
facts  upon  which  the  plaintiff  relies,  as  establishing  his  right  to 
maintain  the  action ;  not,  instead  of  those  facts,  the  inferences 
which  the  pleader  may  deem  to  be  conclusions  of  law.  It  be- 
longs to  the  court  to  draw  the  legal  conclusions  from  the  facts, 
which  are  alleged  to  constitute  the  cause  of  action,  and,  to  ena- 
ble the  court  to  perform  that  duty,  all  those  facts  must  be  stated 
in  the  complaint." 

In  Blanchard  v.  Strait,  8  How.  83,  it  is  laid  down  that  the 
facts  constituting  a  cause  of  action,  must  now  be  set  forth  in  a 
plain,  direct,  definite,  and  certain  manner,  or  the  pleading  will 
be  objectionable.  In  Clark  v.  Harwood,  8  How.  470,  it  is  held 
that  the  plaintiff  is  to  state  the  facts  which  constitute  his  cause 
of  action,  and  nothing  more.  In  Hall  v.  Soutlimayd,  15  Barb.  32, 
similar  general  principles  are  laid  down.  See  likewise,  Lienan 
v.  Lincoln,  12  L.  O.  29.  In  Horner  v.  Wood,  15  Barb.  371,  it  is 
decided  that,  in  alleging  a  change  of  interest  under  a  contract, 
the  fact  of  such  change  is  all  that  is  necessary  to  be  averred, 
without  going  into  minute  particulars. 

This  last  case  also  hvys  down  the  principle  that  facts,  and  not 
the  evidence  of  facts,  form  alone  the  proper  subject  of  aver- 
ment in  a  complaint,  as  in  all  other  pleadings.  See  this  subject 
considered  in  extenso,  and  numerous  cases  cited,  in  the  prelimi- 
nary chapter  of  the  preceding  division  of  the  work. 

Obi  Forms,  how  far  adaptable.] — The  old  forms  of  counts  in  a 
declaration  arc,  as  a  general  rule,  inadmissible  as  forms  of  state- 
ment of  a  cause  of  action.  "A  more  definite,  certain,  and  truth- 
ful statement  should  be  given."     Blanphard  v.  Strait,  8  How. 

/•; :    Woodworih,  I  Cdmst.  249;  1  0.  It.  (N.  S.)  262;  as 

likewise  Sipperly  v.  The  Troy  and  Hoy-ton  Railroad  Company,  9 
How.  83.  In  a  modified  degree,  however,  and  with  proper  cur- 
tailment, du<  being  also  paid  to  the  proposition  that  the 
proper  subject  of  statement  under  the  Code  is,  not  the  conclusion 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  383 

of  law,  but  the  facts  from  which  that  conclusion  is  derived  ;  the 
old  forms  may  be  usefully  employed  as  partial,  though  never  as 
total  precedents.  See  Hall  v.  Southmayd,  15  Barb.  82  ;  Bows 
v.  Hotchkiss,  10  L.  O.  281 ;  Leopold  v.  Poppenheimer,  1  C.  R.  39  ; 
Shaw  v.  Jayne,  4  How.  119;  2  C.  R.  69;  Stockbridge  Iron  Com- 
pany v.  Mellen,  5  How.  439. 

General  Averments  abolished.'] — The  old  system  of  general  aver- 
ments, which  conveyed  no  information  to  the  opposite  party,  is 
altogether  abolished.  See  Garveyv.Foiuler,  above  cited.  Thus,  in 
Smith  v.  Lochwood,  18  Barb.  209 ;  10  L.  0.  232,  1  C.  R.  (N.  S.) 
319,  a  general  averment,  that  the  acts  of  the  defendant  were 
contrary  to  statute,  without  setting  forth  in  what  manner,  was 
held  not  sufficient,  and  that  such  a  complaint  must  set  forth 
facts,  by  which  the  court  can  see  that  the  plaintiffs  have  sus- 
tained, or  will  sustain  some  legal  injury,  or  it  will  be  bad  on 
demurrer.  See  the  same  conclusion  come  to  with  respect  to  a 
penal  statute,  in  Morehouse  v.  Crilhy,  8  How.  481. 

Although,  in  these  proceedings,  the  facts  which  bring  the 
case  within  the  statute,  and  not  a  mere  breach  of  the  statute, 
must  be  avowed :  still,  on  the  other  hand,  it  is  equally  essential 
that,  in  actions  under  any  special  statutory  provision,  the  com- 
plaint should  strictly  conform  to  the  statute  sued  under,  and 
that  statute  should  be  specially  referred  to.  Schroeppel  v.  Com- 
ing f  2  Comst.  132. 

In  an  action  in  respect  of  professional  services,  a  general  aver- 
ment of  the  render  of  such  services  previous  to  a  specified  date, 
without  giving  any  details  whatever,  was  held  to  be  good,  on 
the  ground  that  it  was  in  the  defendant's  power  to  obtain  the 
information  he  wanted  by  demand  under  sec.  158,  or  by  motion 
under  sec.  160.  Beekman  v.  Plainer,  15  Barb.  550.  In  West  v. 
Brewster,  1  Duer,  647  ;  11  L.  O.  157,  the  same  principle  was 
applied  to  an  action  against  an  attorney,  for  moneys  collected 
by  him,  and  a  motion  to  render  the  complaint  more  definite 
and  certain  was  refused. 

Averments  on  Belief,  various  other  Decisions.'] — The  question 
as  to  how  far  averments  may  or  may  not  be  made  on  the  belief 
of  the  party,  has  been  already  considered,  and  the  cases  cited 
in  the  previous  chapters.  As  a  general  rule,  they  should  be 
positively  made,  in  all  cases  where  such  a  form  of  statement  is 
not  manifestly  inadmissible. 


384      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

In  actions  by  a  receiver,  it  is  essential  that  the  fact  and  mode 
of  his  appointment  should  be  distinctly  averred.  .  White  v.  Low, 
7  Barb.  204. 

When  the  plaintiff  sues  in  his  own  name,  but  for  the  benefit 
of  a  numerous  class  of  persons,  under  the  powers  given  for  that 
purpose  by  sec.  119,  his  complaint  must  contain  a  distinct  aver- 
ment to  that  effect,  or  he  cannot  maintain  the  suit.  Smith  v. 
Lockwood,  10  L.  O.  12 ;   1  C.  E.  (N.  S.)  319. 

In  an  action  against  a  surety,  under  a  bond  given  on  arrest, 
the  fact  that  the  person  bringing  the  action  is  the  party  ag- 
grieved, must  be  averred  in  terms.  Rayner  v.  Clark,  7  Barb. 
581 ;  3  C.  E.  230. 

In  an  action  brought  under  the  statute  of  1817,  by  the  repre- 
sentative of  a  party  killed  by  accident,  the  fact  that  there  are  a 
widow,  or  next  of  kin,  who  have  sustained  pecuniary  loss,  must 
be  specifically  averred.     Saffordv.  Drew,  12  L.  0.  150. 

In  Suits  by  Corporations^] — The  following  decisions  are  appli- 
cable to  suits  by  corporations  : 

In  a  suit  by  a  foreign  corporation,  the  complaint  need  not  state 
the  act  of  incorporation  or  charter  at  large,  or  even  by  refer- 
ence. Ilolyoke  Bank  v.  Ilaskins,  4  Sandf.  675.  The  mere  allega- 
tion that  the  plaintiffs  sue  as  a  corporation  is  sufficient;  every 
thing  beyond  is  matter  of  evidence  on  the  trial.  Stoddard  v. 
The  Onondaga  Annual  Conference,  12  Barb.  573  ;  Union  Mutual 
Insurance  Company  v.  Osgood,  1  Duer,  707.  It  was  held,  how- 
ever, that,  if  the  fact  be  controverted  by  the  answer,  it  will  be 
necessary  to  be  proved  affirmatively  on  the  trial.  Waterville 
Manufacturing  Company  v.  Bryan,  14  Barb.  182. 

Id  Bemom  v.  Tagnot,  5  Sandf.  153,  it  is,  in  like  manner,  held 

that  it  is  sufficient  to  aver  that  a  contract,  sought  to  be  enforced, 

wras  in  violation  of  a  municipal  ordinance,  when  such  ordinance 

founded  on  Statute,  without  pleading  the  statute  itself;  and 

thai  this  rule  holds  good,  as  well  concerning  statutes  of  local, 

il  application.     Sec  similar  principles,  as  laid 

down   in  Horner  \.  Wood,   15   Barb.  871;  sec  likewise  Goelet  v. 

'     '/•//.  1  Duer,  !•"■'. 

In  The  People  v.  The  Mayor  of  Nop  York,  7  IIow.  81,  it  is 
aver  held,  that  this  principle  does  not  hold  good  with  refer- 
to  the  ordinances  of  the  Common  Council  of  New  York, 
and  that  they  arc  not  public  acts,  in  such  a  sense  that  they  can 
be  noticed,  without  being  specially  pleaded. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.     385 

Other  Points.] — In  Mason  v.  Jones,  13  Barb.  461,  will  be 
found  the  particulars  of  an  allegation  of  the  due  making  and 
proof  of  a  testator's  will,  passed  upon  by  the  court  in  that  case 
as  sufficient.  It  is  not  absolutely  necessary,  though  in  all  cases 
it  will  be  advisable,  to  show  affirmatively  on  the  face  of  the 
complaint,  that  a  debt  sued  for  had  become  due  before  the  com- 
mencement of  the  action.  Maynard  v.  Talcott,  11  Barb.  569. 
The  word  "  due,"  in  a  general  sense,  imparts,  not  merely  indebt- 
edness, but  that  the  time  when  payment  should  have  been  made 
has  elapsed.  Allen  v.  Patterson,  Court  of  Appeals,  30th  Decem- 
ber, 1852. 

In  The  Bochester  City  Bank  v.  Snydam,  5  How.  254,  also  no- 
ticed, 3  C.  E.  249,  a  long  and  interesting  discussion  will  be 
found  on  the  subject  of  averments  in  a  complaint,  grounded  on 
confidential  communications  made  to  an  attorney,  and  as  to  the 
circumstances  under  which  such  communications  may  or  may 
not  be  made  use  of,  and  the  party  considered  as  exempted  from 
the  usual  obligation  of  secresy  in  such  cases. 

Recovery  must  he  secundum  allegata,  <£c] — In  framing  aver- 
ments of  any  kind,  the  fact  that  the  plaintiff  can  only  recover 
"  secundum  allegata"  must  be  borne  in  mind,  as  the  fundamental 
doctrine  of  all  pleading  whatsoever.  In  Livingston  v.  Tanner, 
12  Barb.  481,  it  is  held  that  this  rule  is  as  applicable  to  actions 
brought  under  the  Code,  as  it  was  before  its  adoption  ;  that  mea- 
sure requiring,  more  than  ever,  the  true  cause  of  action  to 
appear  upon  the  complaint.  See  likewise  Field  v.  Morse,  7 
How.  12. 

In  Bristol  v.  Rensselaer  and  Saratoga  Railroad  Company,  9 
Barb.  158,  the  doctrine  that  the  plaintiff  can  only  recover  secun- 
dum allegata,  is  also  strictly  maintained.  The  omission  of  alle- 
gations that  the  defendants  were  common  carriers,  that  they 
had  received,  or  were  to  receive,  compensation  for  carrying  the 
goods,  for  the  non-delivery  of  which  the  action  was  brought, 
and  that  they  were  to  receive  a  reward  for  carrying  those  goods, 
were  held  to  constitute  fatal  defects.  No  allegations  having  been 
made  of  those  facts,  it  was  accordingly  decided  that  they  could 
not  be  proved.  If,  too,  a  demand  of  the  goods  be  necessary, 
to  show  the  plaintiff's  right  of  action,  it  ought  also  to  be  alleged 
in  the  complaint.  The  referee's  report  in  that  case  was  accord- 
ingly set  aside,  on  the  above  grounds. 
25 


386  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

In  Bailey  v.  Ryder,  Court  of  Appeals,  30th  Dec,  1852,  it  is 
distinctly  laid  down  that  no  decree  can  be  made  in  favor  of  a 
complainant,  on  grounds  not  stated  in  his  bill.  The  absence  of 
allegations  of  fraud  in  a  proceeding  in  equity,  was  therefore 
held  to  preclude  all  proof  of  that  nature. 

In  Field  v.  The  Mayor  of  New  York,  2  Seld.  179,  it  is  likewise 
held  that  facts  proved  but  not  pleaded,  are  not  available  to  the 
party  proving  them.  In  Mc  Curdy  v.  Brown,  1  Duer,  101,  the 
complaint  was  also  dismissed,  on  the  ground  that  the  pleading 
did  not  correspond  to  the  proof.  When  the  complaint  showed 
upon  its  face  that  the  plaintiff's  demand  was  barred  by  the  Sta- 
tute of  Limitations,  a  mere  allegation  that  the  trustees  against 
whom  the  suit  was  brought  had  acted  in  their  representative 
capacity,  by  bringing  a  suit  within  ten  years,  without  any  aver- 
ment that,  by  means  of  that  suit,  they  had  received  any  money, 
was  held  to  be  insufficient  to  avoid  the  statute,  and  that  demur- 
rer would  lie.     Genet  v.  Tallmadge,  1  C.  E.  (N.S.)  346. 

In  Bennett  v.  American  Art  Union,  5  Sandf.  614, 10  L.  O.  132, 
the  complaint  was  dismissed,  because  on  its  face  the  plaintiff  had 
no  title  to  relief.  A  defect  of  this  nature  is  fatal  at  any  stage 
of  the  action.     Noxonv.  Bentley,  7  How.  316. 

A  complaint,  seeking  consequential  damages  merely,  in  re- 
spect of  the  performance  of  acts  authorized  by  statute,  cannot 
be  maintained,  and  demurrer  will  lie.  Gould  v.  Hudson  River 
Railroad  Company,  12  Barb.  616.  See,  also,  Getty  v.  The  same, 
8  How.  177. 

§  129.  Averments  of  Fact  in  special  Cases. 

We  now  come  to  the  consideration  of  the  cases  peculiarly 
applicable  to  the  different  forms  of  complaint,  on  different  causes 
of  action,  separately  considered. 

Averments  in  Tort,  where  Defendant  arrestable.'] — Considerable 
discussion  baa  arisen  as  to  the  necessity  of  inserting  express 
averments  of  fraud  in  the  complaint,  in  cases  where  the  defend- 
ant is  arrestable  under  the  conjoint  provisions  of  sees.  179  and 

288. 

In  Barber  v.  Hubbard,  3  C.  B.  156,  the  poinl  was  left  open, 
and  it  was  considered  by  Edmonds,  J.,  that  there  vas  no  impro- 
priety in   inserting  averments  of  that  nature       In  Oridley  v. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  og7 

McCumber,  5  How.  414,  3  C.  E.  211,  it  was  positively  held  that, 
in  order  to  warrant  an  execution  against  the  person  under  sec- 
288,  such  averments  are  indispensable ;  and  the  same  doctrine 
is  laid  down  still  more  strongly  by  King,  J.,  in  Barker  v.  Russell, 
1  C.  E.  (N.  S.)  5. 

In  Corvoin  v.  Frceland,  6  How.  241,  it  was  likewise  laid  down 
at  the  general  term  that,  where  the  cause  of  arrest  exists  at  the 
time  of  drawing  the  complaint,  it  should  be  stated  in  it. 

The  decision  in  Barker  v.  Russell  was,  however,  reversed  by 
the  general  term  of  the  same  court  in  Barker  y.  Russell,  11  Barb. 
803, 1  C.  E.  (N.  S.)  57,  similar  doctrines  having  been  previously 
held  in  Secor  v.  Roome,  2  C.  E.  1.  In  Lee  v.  Elias,  3  Sandf. 
736 ;  1  C.  E.  (N.  S.)  116,  the  like  view  was  most  strongly 
enounced  by  the  Superior  Court,  and  averments  of  this  nature 
were  stricken  from  the  complaint  as  redundant.  See  also  Che- 
ney v.  Oarbutt,  5  How.  467  ;  1  C.  E.  (K  S.)  166  ;  Masten  v. 
Scovill,  6  How.  315.  This  view  is  further  confirmed,  and  the 
above  conclusion,  as  stated  in  Corwin  v.  Freeland,  dissented 
from,  in  Field  v."  Morse,  7  How.  12.  See  subsequent  application 
in  the  same  case,  reported  8  How.  47 ;  and  statements  of  the 
same  nature  are  equally  inadmissible,  when  introduced  for  the 
first  time  in  the  reply.     Brown  McCune,  5  Sandf.  224. 

The  above  conflict  of  opinion  would  seem  to  have  been  since 
settled,  and  the  views  taken  in  the  latter  class  of  cases  decided 
to  prevail,  by  the  Court  of  Appeals.  See  8  How.  49,  in  report 
of  case  of  Field  v.  Morse,  8  How.  47,  where  the  doctrine  as 
stated  in  Cheney  v.  Garbutt  is  said  to  have  been  confirmed. 

On  a  review  of  the  practice,  as  now  settled  by  these  various^ 
decisions,  the  proper  course  to  pursue  will  be  to  state  the  cause 
of  arrest  shortly  and  concisely  in  the  complaint,  as  a  direct,  but 
not  as  a  probative  fact,  wherever  that  cause  exists  as  part  of 
the  main  cause  of  action,  and  not  collaterally  to  it,  as,  for 
instance,  in  actions  for  torts,  or  debts  fraudulently  contracted, 
If  the  cause  of  arrest  be  of  a  collateral  nature,  such  as  an  intended 
removal,  a  statement  to  that  effect  will,  on  the  contrary,  be 
inadmissible,  as  being  in  its  very  nature  a  probative,  and  not  a 
principal  fact.  See  this  view,  as  laid  down  in  Masten  v.  Scovillt 
6  How.  315,  above  cited. 

Slander  and  Libel.'] — In  slander,  the  precise  words  used  must 
be  stated  in  the  complaint,  or  demurrer  will  lie;  nor  will  it  be 


388  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

expedient  to  omit  a  statement  of  time  and  place,  though,  the 
latter  omission  is  not  demurrable.  Finnerty  v.  Barker,  7  L.  0.  316. 

The  words  used  must  be  alleged  as  having  been  spoken  in 
the  presence  and  hearing  of  some  one,  or  the  complaint  will  be 
defective.  Wood  v.  Gilchrist,  1  C.  E.  117  ;  Anon.,  3  How.  406. 
An  averment  to  this  effect  will  be  the  only  really  safe  practice 
in  all  cases,  though  it  has  been  held  that  the  word  "published," 
if  used,  imports  an  uttering  in  the  presence  and  hearing  of 
others,  "  ex  vi  termini."     See  Duel  v.  Agan,  1  C.  E.  134. 

Where  the  slanderous  words  have  been  spoken  in  a  foreign 
tongue,  they  must  be  averred  in  the  original  language,  with  an 
additional  allegation,  showing  their  meaning,  and  that  the  par- 
ties to  whom  they  were  used  understood  it.  Lettman  v.  Ritz, 
3  Sandf.  734.  See,  also,  Pike  v.  Van  Wormer,  5  How.  171 ;  6 
How.  99;  1  C.  E.  (N.  S.)  403;  and  Debaix  v.  Behind,  1  C.  E. 
(N.  S.)  235. 

In  Phincle  v.  Vaughan,  12  Barb.  215,  it  was  held  that  the 
imputation  of  false  swearing  under  oath,  without  any  averment 
that  the  words  complained  of  were  spoken  in  reference  to  a 
judicial  proceeding,  was  not  slanderous  per  se,  and  a  nonsuit 
under  those  circumstances  was  maintained ;  though  it  was  con- 
sidered by  the  court  that,  if  an  amendment  had  been  allowed, 
by  inserting  an  allegation  of  words  proved  on  the  trial,  to  the 
effect  that  if  the  plaintiff  "had  had  his  deserts,  he  would  have 
been  dealt  with  in  the  time  of  it,"  the  action  might  then  have 
been  maintained. 

It  was  held  in  Baker  v.  Williams,  12  Barb.  527,  that  slander 
would  lie  for  an  imputation  of  perjury,  on  an  affidavit  made 
before  a  justice  of  the  peace,  in  order  to  obtain  an  attachment 
against  a  defaulting  witness,  though  such  oath  was  orally  taken. 

Slander  is  maintainable  by  a  husband,  in  respect  of  slander- 
ous words  Bpoken  of  his  wife,  affecting  her  health  and  spirits. 
Ohn  tead  v.  Brown,  12  Barb.  657. 

Words  not  alleged  in  the  pleadings  cannot  be  given  in  evi- 
lence,  Rundell  v.  Butler,  7  Barb.  260;  but  insinuations,  made 
in  indirect  terms,  may  nevertheless  be  actionable. 

In  slander,  allegations  of  a  subsequent  usage  of  the  words 

complained  of,  and  likewise  of  other  defamatory  expressions  not 

cifically  averred,  are   inadmissible,  and  no  evidence  can  be 

given  upon  tie  m;    and,  on  a  proper  application,  they  might  be' 

stricken  out  as  redundant     Gray  v.  NeUis,  6  How.  290. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  389 

Where  several  causes  of  action  in  slander  are  united  in  the 
same  complaint,  they  must  be  separately  stated,  or  demurrer 
will  lie ;  Pike  v.  Van  Wormer,  5  How.  171 ;  and  the  same  case 
may  be  consulted  as  to  what  will  or  will  not  be  held  as  sufficient 
averments  in  cases  of  that  nature.  See  also  6  How.  99 ;  1  C.  R. 
(N.  S.)  403. 

The  imputation  of  insolvency  against  a  petty  trader  is  action- 
able.     Carpenter  v.  Dennis,  3  Sandf.  305. 

In  cases  of  either  libel  or  slander,  a  bare  allegation  that  the 
defamatory  matter  had  application  to  the  plaintiff,  is  all  that  is 
necessary  to  be  pleaded.  No  extrinsic  facts,  for  the  purpose  of 
showing  that  application,  need  be  stated ;  though,  of  course,  if 
the  allegation  be  controverted,  those  facts  must  be  proved  at 
the  trial.  See  Code,  sec.  164.  Where,  however,  a  statement 
of  extrinsic  circumstances  is  necessary  to  show  the  meaning  of 
the  words  themselves,  that  statement  must  be  introduced. 
Pike  v.  Van  Wormer,  above  cited.  Nor  is  it  necessary  to  aver 
malice  in  terms,  where  the  publication  complained  of  is  libellous 
on  its  face.  The  law  will  imply  it  on  proof  of  the  facts.  Fry 
v.  Bennett,  5  Sandf.  54,  9  L.  O.  330;  1  C.  R.  (N.  S.)  238;  How- 
ard  v.  Sexton,  4  Comst.  167;    Buddington  v.  Davis,  6  How.  401. 

In  Stanley  v.  Webb,  4  Sandf.  21,  3  C.  R.  79,  the  law  of  privi- 
leged communications  in  cases  of  libel  will  also  be  found  fully 
considered,  and  a  number  of  authorities  cited.  Snyder  v.  'Andrews, 
6  Barb.  43,  contains  also  a  long  discussion  on  the  law  of  libel 
in  general,  and  both  cases  may  be  referred  to  with  advantage. 
See  also  Cook  v.  Hill,  3  Sandf.  341,  subsequently  cited,  and 
Howard  v.  Sexton,  4  Comst.  157. 

In  Cook  v.  Hill,  3  Sandf.  341,  it  was  held  that  no  action  would 
lie  in  respect  of  a  memorial  to  the  Postmaster-General,  charging 
fraud  against  a  successful  candidate  for  a  government  contract. 
The  communication  was  held  to  be  a  privileged  one,  if  the 
statements  contained  in  that  memorial  were  true;  but  other- 
wise, if  they  were  false.  See,  likewise,  Buddington  v.  Davis,  6 
How.  401. 

Although  a  full,  fair,  and  correct  report  of  a. trial  in  a  court 
of  justice  is  privileged,  the  report  must  be  confined  to  the  actual 
proceedings,  and  must  contain  nothing  in  addition,  nor  does  the 
privilege  extend  to  ex  parte  preliminary  proceedings  before  a 
magistrate.  The  publisher  must  find  his  justification,  not  in  the 
privilege,  but  in  the  truth  of  the  publication.     Stanley  v.  Webb, 


390      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

above  cited.    See  similar  principles  laid  down  in  Huffy.  Bennett, 
4  Sandf.  120. 

An  act  has  recently  been  passed  by  the  legislature  on  this 
subject,  (Laws  of  1854,  c.  130,  p.  314,)  by  which  it  is  provided 
as  follows: 

§  1.  No  reporter,  editor  or  proprietor  of  any  newspaper,  shall  be 
liable  to  any  action  or  prosecution,  civil  or  criminal,  for  a  fair  and  true 
report  in  such  newspaper  of  any  judicial,  legislative,  or  other  public 
official  proceedings,  of  any  statement,  speech,  argument  or  debate  in  the 
course  of  the  same,  except  upon  actual  proof  of  malice  in  making  such 
report,  which  shall  in  no  case  be  implied  from  the  fact  of  the  publica- 
tion. 

§  2.  Nothing  in  the  preceding  section  contained  shall  be  so  construed 
as  to  protect  any  such  reporter,  editor  or  proprietor,  from  an  action  or 
indictment  for  any  libellous  comments  or  remarks  superadded  to,  and 
interspersed,  or  connected  with  such  report. 

§  3.  This  act  shall  take  effect  immediately. 

In  Streeter  v.  Wood,  15  Barb.  105,  the  preferring  of  charges 
by  one  member  of  a  lodge  against  another,  in  due  form,  was 
held  prima  facie  to  be  a  privileged  communication,  and,  if  made 
in  good  faith,  no  action  would  lie. 

In  relation  to  the  general  privilege  of  an  attorney,  in  reference 
to  communications  between  him  and  his  client,  see  The  Rochester 
City  Bank  v.  Suydam,  5  How.  254,  3  C.  R  249. 

In  Weed  v.  Foster,  11  Barb.  203,  an  imputation  of  the  receipt 
of  money  for  procuring  a  public  appointment,  made  against  an 
influential  politician,  was  held  to  be  libellous  per  se. 

In  libel,  it  is  not  necessary  to  aver  express  malice,  or  want  of 
probable  cause ;  these  points  rather  belong  to  the  measure  of 
proof,  than  to  the  form  of  pleading.  Purdy  v.  Carpenter,  6 
How.  301. 

In  Bennett  v.  Williamson,  4  Sandf.  GO,  it  was  held  that  an 
imputation  of  pleading  the  Statute  of  Limitations  unfairly,  was 
not  libellous  per  se,  there  lieing  no  charge  that  the  plaintiff  made 
that  plea  dishonestly.  In  the  same  case,  a  distinction  is  drawn 
between  tg  or  writing  the  same  words,  and  it  is  held 

that  libel  in  such  cases  may  lie,  w  here  slander  will  not. 

Slander  of  Utile.]   -In  bindenv,  Graham,  1  Duer.  670, 11  L.  O. 
it,  was  held,  with  reference  to  the  cognate  subject  of  Slan- 
der of  Title,  that  it  is  essential,  in  these  cases,  to  name  the  per- 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  391 

sons  who  refused  to  loan  or  purchase  in  consequence  of  the  act 
complained  of,  and  that,  if  not,  the  complaint  will  be  demur- 
rable. 

Breach  of  Promise  of  Marriage,  &c.~] — In  cases  of  breach  of 
promise  of  marriage,  the  form  of  the  old  declaration  in  such 
cases  may  be  substantially  followed,  with  some  few  necessary 
abbreviations.  See  Leopold  v.  Poppenheimer,  1  C.  K.  39.  In 
relation  to  an  action  for  seduction,  see  Knight  v.  Wilcox,  15 
Barb.  279. 

An  action  of  the  former  nature  sounds  clearly  in  tort,  and  is 
not  a  debt  within  the  meaning  of  the  Homestead  Exemption  Act 
of  1850.     Newman  v.  Cook,  11  L.  0.  62. 

False  Imprisonment.'] — In  actions  for  false  imprisonment,  the 
complaint  must  be  confined  to  a  simple  pleading  of  the  fact, 
according  to  the  old  practice ;  and  any  statements  of  the  attend- 
ant circumstances,  will,  if  objected  to,  be  stricken  out  as  frivo- 
lous.    Shaw  v.  Jayne,  4  How.  119  ;  2  C.  E.  69. 

In  relation  to  the  powers  of  a  justice  in  issuing  a  warrant 
upon  slight  cause,  and  the  extent  to  which  such  warrant  will 
afford  protection  to  the  parties  acting  under  it,  see  Wilson  v. 
Robinson,  6  How.  110,  holding  a  strict,  and  Campbell  v.  Ewalt, 
7  How.  399,  a  very  liberal  view  of  the  question. 

Assault  and  Battery.'] — In  assault  and  battery,  and  other  ac- 
tions of  a  like  nature,  the  old  forms  of  declaration  may  also 
advantageously  be  consulted,  with  a  view  to  framing  the  com- 
plaint in  concise  and  legal  language,  of  course  pruning  away 
all  unnecessary  repetitions. 

In  Root  v.  Foster,  9  How.  37,  statements  as  to  the  intent  of 
the  defendant,  and  the  ridicule  brought  upon  the  plaintiff  by 
his  conduct,  were  refused  to  be  stricken  out.  Though  not  essen- 
tial to  entitle  the  plaintiff  to  sustain  his  action,  they  were  mate- 
rial on  the  question  of  damages,  and  might  be  proved. 

Actions  against  Common  Carrier. — The  first  count  of  the  former 
declaration  in  these  cases  has  also  been  held  to  be  a  proper  form 
of  averment  in  a  case  of  this  nature,  Stockbridge  Iron  Company 
v.  Mellen,  5  How.  439,  but  the  succeeding  ones  were  there 
stricken  out  as  redundant.  In  relation  to  a  carrier's  power  to 
restrict  his  common  law  liability,  see  the  recent  case  of  Moore  v. 
Evans,  14  Barb.  524. 


392  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

§  130.  Averments  of  Fact  in  special  Cases  continued. 
2.  Averments  in  Contract. 

Suits  on  written  Instruments,  Performance  of  Conditions  prece- 
dent.']— With  reference  to  the  numerous  class  of  actions  arising 
upon  written  instruments,  or  in  which,  in  a  general  point  of 
view,  the  performance  of  some  condition  precedent  has  to  be 
pleaded,  the  provisions  of  the  Code  have  been  greatly  extended 
by  the  amendments  of  1851. 

The  section  in  reference  thereto,  sec.  162,  now  stands  as 
follows : 

§  162.  In  pleading  the  performance  of  conditions  precedent  in  a 
contract,  it  shall  not  be  necessary  to  state  the  facts,  showing  such 
performance,  but  it  may  be  stated  generally,  that  the  party  duly  per- 
formed all  the  conditions  on  his  part;  and,  if  such  allegation  be  contro- 
verted, the  party  pleading  shall  be  bound  to  establish  on  the  trial  the 
facts  showing  such  performance.  In  an  action  or  defence,  founded 
upon  an  instrument,  for  the  payment  of  money  only,  it  shall  be  suffi- 
cient for  the  party  to  give  a  copy  of  the  instrument,  and  to  state  that 
there  is  due  to  him  thereon  from  the  adverse  party,  a  specified  sum, 
which  he  claims. 

The  whole  of  the  last  section  is  new,  and  it  seems  obvious 
that  this  provision  must  be  construed  with  considerable  limita- 
tions. Taken  by  itself,  and  without  reference  to  other  provi- 
sions, or  to  general  principles  of  law,  it  would  seem  to  author- 
ize a  party,  who  founds  his  action  upon  a  written  instrument 
for  payment  of  money  only,  simply  to  give  a  copy  of  that  in- 
strument, and  to  state  what  is  due  to  him,  and  to  do  no  more. 
According  to  this  rule,  if  so  carried  out,  a  party  suing  on  a 
policy  of  insurance,  or  the  plaintiff  in  an  action  against  an 
endorser  or  guarantor  of  a  promissory  note,  need  only  give  a 
copy  of  the  instrument  on  which  he  makes  his  claim,  without 
alleging,  on  t  tie  one  band,  the  Loss  claimed  upon,  or  due  present- 
ment and  due  notice  to  the  endorser  or  guarantor  on  the  other ; 
although,  in  the  former  case,  the  Loaa  itself  would  form,  in  fact, 
the  whole  cause  of  action,  and,  in  the  latter,  the  facts  thus  left 
out  are  positive  conditions  precedent,  essential  to  be  performed, 
before  tin;  party  sought  to  be  charged  is  liable  to  be  sued  at 
all.    it  would  be  easy  to  multiply  similar  instances,  but  the  two 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  393 

above  given  will  suffice  to  show  that  such  a  construction,  if 
carried  out  to  its  full  extent,  would  involve  a  practical  ab- 
surdity, if  not  an  utter  impossibility  in  practice. 

It  seems  obvious  that  the  utmost  limit  to  which  the  powers 
of  this  section  can  legitimately  extend,  is  with  reference  to  ac- 
tions brought  directly  by  the  party  in  whose  favor  a  written 
instrument  is  made,  against  the  party  making  it:  and  this,  only 
where  the  claim  sued  on  arises  solely  under  the  terms  of  that 
instrument  itself,  without  reference  to  external  circumstances, 
or  to  the  performance  of  external  conditions.  The  provision 
in  question  appears,  then,  really  to  amount  to  little  more  than 
permission  to  the  party  pleading  to  give  a  copy  of  the  instru- 
ment sued  upon,  instead  of  an  abstract  of  its  contents,  a  per- 
mission which  practically  existed  before.  It  might  possibly, 
indeed,  be  held  as  dispensing  with  the  necessity  of  making  the 
ordinary  allegations  as  to  the  making  and  delivery  of  the  in- 
strument in  question ;  but  even  with  regard  to  these,  the  wis- 
dom of  omitting  such  allegations  seems  more  than  doubtful 
under  any  circumstances,  or,  at  all  events,  until  the  courts  have 
finally  and  decidedly  pronounced  on  the  true  construction  of 
the  words  employed.  The  clause  then,  when  scrutinized  closely, 
seems  so  wide  and  so  loose,  that,  until  its  actual  scope  has  been 
clearly  and  accurately  defined,  it  would  be  unsafe  to  rely  upon 
it  in  any  case,  or  in  any  respect  whatever ;  especially  as  the 
adoption  of  this  course  is,  at  the  best,  entirely  optional,  and  the 
old  established  forms  of  allegation  in  such  cases  are  in  no 
manner  impeached  or  abolished.  It  might  even  be  contended 
that,  instead  of  giving  parties  increased  facilities  of  averment, 
it  rather  tends  to  diminish  those  they  already  possess,  and  to 
impose  upon  the  pleader  a  sort  of  quasi  necessity  of  giving  a 
copy  of  the  instrument  sued  upon  in  all  cases,  or  rather,  strictly 
speaking,  to  render  this  the  more  advisable  course.  The  legis- 
lature, no  doubt,  meant  to  give  increased  facilities,  but  it  seems 
somewhat  questionable  whether  they  may  not,  in  fact,  have 
imposed  increased  restrictions,  to  be  observed,  as  a  matter  of 
prudence,  at  least,  if  no  more. 

Bills  or  Notes — Observations  on  last  Point] — The  above  obser- 
vations have  peculiar  application  to  the  different  questions  which 
have  arisen,  with  respect  to  the  proper  form  of  averment  in 
actions  upon  bills  or  promissory  notes.     Until  the  proper  con- 


394  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

struction  of  section  162  has  been  settled,  and  firmly  settled  by 
judicial  construction,  it  would,  in  the  writer's  opinion,  be  a 
matter  of  the  gravest  imprudence  to  depart,  in  any  essential 
particular,  from  the  forms  as  now  established,  or  to  omit  any 
one  allegation  which  is  now  looked  upon  as  essential,  except 
in  so  far  as  it  may  now  be  looked  upon  as  advisable,  in  some 
cases,  to  give  an  actual  copy  of  the  bill  or  note  sued  on,  with 
all  its  endorsements. 

In  Lord  v.  Checseborough,  4  Sandf.  696 ;  1  C.  K.  (N.  S.)  322, 
principles  are  laid  down  in  exact  accordance  with  the  views 
above  stated.  The  complaint  in  that  case  was  on  a  promissory 
note,  and  was  framed  in  precise  compliance  with  sec.  162,  as 
now  amended.  There  was,  accordingly,  no  allegation  that  the 
plaintiffs  were  the  holders  or  owners  of  the  note  there  in  ques- 
tion, or  that  the  note  was  ever  delivered  to  the  plaintiffs,  or  to 
any  one,  by  the  defendants,  or  any  thing,  except  the  allegation 
that  a  specified  sum  was  due  to  them  on  the  note,  which  they 
claimed  from  the  defendants.  An  answer,  taking  issue  on  the 
transfer  and  delivery  of  the  note,  and  the  ownership  of  the 
plaintiffs,  and  objecting  to  the  complaint  as  not  stating  facts 
sufficient  to  constitute  a  cause  of  action,  was  refused  to  be 
stricken  out  as  frivolous,  and  the  complaint  held  to  be  defect- 
ive, on  the  ground  of  the  above  omission ;  leave  being  given  to 
amend.  See  also  The  Bank  of  Geneva  v.  Gulick,  8  How.  51 ; 
and  the  same  doctrine  had  been  previously  shadowed  out  in 
Ranney  v.  Smith,  6  How.  420,  in  relation  to  the  statement  of  a 
set-off  of  this  description.  In  Alder'  v.  Bloomwgdcde,  1  Duer,  601 ; 
10  L.  O.  363,  such  a  complaint  was  held  bad  upon  demurrer, 
it  being  held  that,  when  not  only  the  instrument  itself,  but  ex- 
trinsic facts  are  necessary  to  be  proved  to  enable  the  plaintiff  to 
recover,  the  existence  of  those  facts,  as  constituting  part  of  the 
cause  of  action,  must  be  averred  on  the  complaint;  demand  of 
payment  and  notice  of  refusal  being  held  to  be  facts  of  this 
description,  as  regards  the  endorser's  liability. 

On  in. •  other  hand,  the  Genera]  Term  of  the  First  District 
have  beld,  in  Roberta  v.  Morrison^  11  L.  0.  60,  that,  under  the 
above  ciroumsf;in<-i  .  :i  complaint,  merely  giving  a  copy  of  the 
note  and  endorsement,  was  sufficient  to  charge  an  endorser. 

The  point,  therefore,  still  remains  unsettled  by  any  dominant 
authority,  and  the  cautions  above  given  remain  worthy  of,  at 
least,  serious  consideration,  if  no  more. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  395 

Endorser's  Liability,  Protest,  Notice.'] — The  following  decisions, 
made  partly  before,  and  partly  after  the  insertion  of  the  clause 
above  noticed,  have  reference  to  the  endorser's  liability,  and  the 
proper  mode  of  averment,  in  order  to  an  action  against  him 
being  duly  sustained.  Taken  together,  they  constitute  an  addi- 
tional inducement  to  act  upon  the  doctrine  laid  down  in  the 
majority  of  the  cases  last  cited,  by  taking,  in  all  cases,  the  safer 
course  of  laying  a  sufficient  basis  in  the  allegations,  for  the 
unquestioned  introduction  of  evidence  of  all  the  facts  necessary 
to  be  proved  for  the  above  purposes. 

In  Spellman  v.  Weider,  5  How.  5,  where  a  complaint  had  been 
made  against  both  the  maker  and  the  endorser  of  a  promissory 
note,  the  following  rules  were  laid  down  by  the  court  as  neces- 
sary to  sustain  a  proceeding  of  that  nature:  "The  complaint, 
in  order  to  conform  to  the  Code,  should  state  facts  enough 
against  the  maker  to  show  his  liability  to  pay,  and  enough 
against  the  endorser  to  charge  him  with  the  debt.  In  the  latter 
case,  not  only  the  making  and  endorsement  of  the  note  should 
be  stated,  but  also  the  demand  of  the  maker  at  the  time  and 
place  prescribed  for  that  purpose,  and  notice  of  such  demand, 
and  of  non-payment,  to  the  endorser."  After  going  further 
into  detail  on  the  subject  of  these  requisites,  and  showing  vari- 
ous omissions  in  the  complaint  in  these  respects,  the  court  said : 
"As  against  the  maker,  this  was  of  no  consequence ;  but,  as 
the  plaintiffs  have  chosen  to  unite  both  maker  and  endorser  in 
the  same  action,  their  statement  of  facts  should  have  been  full 
enough  to  show  the  liability  of  both."  Both  parties  having 
been  irregular,  the  difficulty  was  there  solved  by  a  Rule  allow- 
ing the  plaintiffs  to  amend,  and  the  defendants  to  put  in  a  new 
answer  or  demurrer,  without  costs  to  either. 

The  details  as  to  presentation  and  demand  of  payment,  need 
not  be  specially  set  forth,  in  order  to  charge  an  endorser.  It 
will  be  sufficient  to  allege  that  the  note  was  "duly"  presented, 
and  payment  "duly"  demanded.  The  facts  must,  however,  be 
proved,  as  of  course,  on  the  trial.  Gay  v.  Paine,  5  How.  107 ;  3 
C.  R.  162. 

A  long  discussion  on  the  contract  of  endorsement,  and  on  the. 
subjects  of  protest  and  notice  of  dishonor,  will  be  found  at  9  L. 
O.  226,  where  the  bill  of  exceptions,  in  a  case  of  Beats  v.  Peck, 
is  given  in  full,  but  no  decision  is  reported.  On  the  law  of  bills 
and  notes,  in  general,  see  Van  Namee  v.  The  Bank  of  Troy,  5 
How.  161. 


396  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

In  The  Montgomery  County  Bank  v.  Albany  City  Bank,  8  Barb. 
396,  the  law  as  to  the  due  presentment  of  bills  will  be  found 
full j  laid  down:  the  conclusion  being,  that  presentment  for 
payment  is  indispensable,  in  order  to  charge  the  endorser,  but 
that  presentment  for  acceptance  is  not  absolutely  necessary, 
though  highly  advisable.  This  decision  has  since  been  affirmed 
by  the  Court  of  Appeals,  30th  Dec.  1852. 

InWalker  v.  The  Bank  of  the  State  of  New  York,  13  Barb.  636, 
it  was  held,  however,  that,  where  a  bill  had  been  presented  for 
acceptance  by  the  agent  of  the  holders,  and  was  not  accepted 
according  to  its  form  and  tenor,  the  agents  should  have  treated 
the  bill  as  dishonored,  and  given  notice  of  non-acceptance  to  the 
endorsers  ;  for  which  neglect,  the  endorsers  were  held  to  be  dis- 
charged, and  the  agents  liable  to  their  principal;  and  this  deci- 
sion has  been  affirmed  by  the  Court  of  Appeals,  18th  April,  1854. 

The  endorser  was  also  held,  in  Kingsley  v.  Vernon,  4  Sandf. 
361,  to  be  discharged,  by  false  information  given  to  him  by  the 
holder  of  the  bill  as  to  its  having  been  paid,  though  such  infor- 
mation proved  to  be  erroneous,  and  was  honestly  given. 

In  Cook  v.  Litchfield,  5  Sandf.  330,  10  L.  O.  330,  since  affirmed 
by  the  Court  of  Appeals,  31st  Dec.  1853,  as  to  the  general  princi- 
ple; the  subject  of  protest  and  endorsement  are  very  fully  consi- 
dered, it  being  held,  that  mere  formal  omissions  in  the  notice  will 
not  vitiate  it,  provided  the  facts  stated  contain  all  necessary  in- 
formation. It  must  contain  such  a  description  of  the  note  as 
may  enable  the  endorser  to  ascertain  its  identity,  and  must  also 
communicate  the  fact  of  its  dishonor.  See  likewise  Knopfel  v. 
Senfert,  11  L.  0. 184.  See  also  The  Cayuga  County  Bank  v.  War- 
den, below  cited. 

Where,  however,  the  notice  admits  of  any  doubt  as  to  the 
note  referred  to,  the  reverse  will  be  the  case.  Thus,  on  the 
affirmance  of  Cook  v.  Litchfield,  by  the  Court  of  Appeals,  above 
noticed,  it  was  held  that  the  notice  of  the  first  note  there  sued 
on  w;i-  sufficient,  though  couched  in  general  terms,  no  other  note 
to  which  that  notice  could  be  applicable  having  at  that  time 
become  due;  hut  that  the  same  form  of  notice  was  insufficient 
to  charge  the  endorser,  as  to  the  other  note  there  in  question, 
there  being,  at  the  time  when  each  became  due,  two  or  more 
note-:  in  existence,  to  which  the  terms  of  that  notice  would 
equally  apply.  See  notes  of  Court  of  Appeals,  31st  Dec, 
1853. 

On  the  question  as  to  how  far  a  notary's  certificate  will  or  will 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  397 

not  be  deemed  conclusive  as  to  the  facts  of  presentment  and 
notice,  and  the  extent  to  which  a  presumption  will  lie  in  favor 
of  its  correctness,  see  Burbank  v.  Beach,  15  Barb.  326.  The 
subject  of  protest  will  also  be  found  fully  considered  in  Tlie 
Cayuga  County  Bank  v.  Warden,  2  Seld.  19.  See  same  case,  1 
Comst.  413.  This  case  establishes  also  the  principle  above 
referred  to,  that  where  the  notice  is  sufficient  to  convey  informa- 
tion to  the  endorsers  of  the  identity  of  the  note,  and  that  pay- 
ment of  it  had,  on  due  presentment,  been  neglected  or  refused 
by  the  maker,  mere  formal  imperfections  will  not  vitiate  it.  It 
also  settles  the  point  that  the  question  is  one  of  law  for  the 
court,  and  not  of  fact  for  the  jury.  See  as  to  direction  and  ser- 
vice of  notice  of  protest,  Morris  v.  Ifusson,  4  Sanclf.  93,  affirmed 
by  Court  of  Appeals,  21st  April,  1853.  In  Conro  v.  Port  Henry 
Iron  Company,  12  Barb.  27,  it  is  held  that  notice  to  the  agent  of 
a  corporation,  authorized  to  draw  drafts  on  its  account,  is  notice 
to  the  corporation. 

In  Garvey  v.  Foivler,  4  Sandf.  665,  10  L.  0.  16,  it  was  held 
that  an  averment  in  a  complamt  of  due  notice  being  given  to 
an  endorser,  will  be  construed  to  mean  notice  in  fact,  and  not 
notice  by  construction  of  law.  When  the  plaintiff  relies  upon 
facts  excusing  notice  in  fact,  he  must  set  forth  those  facts  in  his 
complaint. 

In  The  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143,  the  ques- 
tion of  the  endorser's  liability,  and  the  necessary  proof  in  such 
cases,  will  be  found  fully  considered.  See  likewise,  in  relation 
to  the  endorser's  liability  in  general,  the  decision  in  Bowen  v. 
Newell,  below  cited  under  the  head  of  Checks  or  Drafts. 

Averments  in  Actions  on  Notes  generally  considered.]— In  Appleby 
v.  Elkins,  2  Sandf.  673,  2  C.  K.  80,  it  was  held  that,  in  an  action 
by  endorsee  against  maker,  the  following  averments  were  suffi- 
cient:— 1st.  Making;  2d.  Delivery;  3d.  Endorsement  to  plain- 
v  tiff;  4th.  Non-payment;  and,  5th.  Indebtedness  of  defendant. 
See  similar  definition  in  Giesson  v.  Oiesson,  1  C.  K.  (N.  S.) 
414;  and  a  demurrer  that  the  complaint  did  not  aver  that  the 
plaintiff  was  lawful  holder,  or  that  the  note  was  due,  was  there 
stricken  out  as  frivolous,  and  leave  to  answer  refused. 

In  Loomis  v.  Dorshimer,  8  How.  9,  it  was  considered  that  an 
allegation  that  the  payee  of  a  note  endorsed  it,  and  that  it  was 
afterwards  delivered  to  the  plaintiff,  was  not  sufficient;  but  the 
point  was  not  expressly  passed  upon. 


398  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

In  Taylor  v.  Corbitre,  however,  8  How.  385,  an  averment  to  the 
above  effect  was  sustained  as  good,  and  judgment  given  for  the 
plaintiff.  This  case  likewise  disapproves  of  the  decision  in 
Beach  v.  Gallup,  2  C.  R.  66,  where  an  allegation  that  the  plaintiff 
was  "  lawful  holder"  was  held  to  be  insufficient,  standing  alone; 
or  rather,  a  demurrer  on  that  ground  was  held  not  to  be  frivo- 
lous. His  lawful  ownership  should,  it  was  there  held,  have  been 
averre  d. 

In  Vanderpool  v.  Tarbox,  7  L.  0.  150,  it  was  considered  that 
a  specific  allegation  of  endorsement  is  necessary,  in  all  cases  of 
action  by  an  endorsee.  A  mere  averment  of  lawful  ownership 
will  not,  in  such  case,  be  sufficient,  standing  alone. 

An  omission  to  aver  the  fact  of  due  protestation,  in  an  action 
by  endorsee  against  endorser,  has  likewise  been  held  to  be 
a  demurrable  defect.  Turner  v.  Comstock,  1  C.  E.  102  ;  7  L.  0.  23. 

"Where  a  party  signed  a  note  as  surety,  his  having  done  so 
ought  to  be  specially  averred.  It  was  held  in  Balcom  v.  Wood- 
ruff, 7  Barb.  13,  that  a  note  of  this  description  could  not  be 
given  in  evidence  under  the  common  money  counts. 

In  an  action  by  the  payee  against  the  maker  of  a  note,  a  bare 
allegation  that  the  defendant,  by  his  note,  promised  to  pay  the 
sum  sued  for,  and  had  not  paid  the  same,  but  was  indebted  to 
the  plaintiff  therefor,  was  held  to  be  sufficient,  on  demurrer  that 
the  delivery  of  the  note,  the  date  of  payment,  and  the  fact  that 
the  note  was  due,  and  that  the  plaintiff  was  owner  and  holder, 
ought  to  have  been  alleged.  Peet*  v.  Bratt,  6  Barb.  662.  The 
complaint  is,  however,  commented  upon  as  being  "  very  loose," 
and,  of  course,  ought  not  to  be  taken  as  a  precedent. 

In  lloxie  v.  Cushman,  7  L.  0.  149,  it  was  held  that  the  consi- 
deration given  for  a  promissory  note  need  not  be  specially 
averred  in  the  complaint,  especially  where  the  payee  had  en- 
dorsed  and  put  that  note  into  circulation:  and,  in  Benson  v. 
Coitchman,  1  C.  R.  1  li),  it  was  also  decided  that  the  words  "for 
vain  i   i"  import  a  consideration  as  between  endorser  and 

endorsee,  and,  <-"n j .!«-<  1  with  the  expression  "lawful  holder," 
ufficienl  cause  of  action. 

In  James  v.  CJialmers,  5  Sam  If.  52,  it  is  held  that  the  pre- 
:  umption  of  law,  that  tin:  holder  of  a  note  is  its  owner,  is  not 
repelled  by  showing  that  it  came  into  his  hands  after  it  was 
due.  Proof  of  a  valuable  consideration  is  only  necessary,  when 
ice  i  .  '•!  up,  which  would  conclude  the  plaintiff,  unless  a 
purchasi  r  for  value  and  without  notice. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  399 

And  the  purchaser  of  such  a  note,  for  a  valuable  considera- 
tion, before  due,  may  maintain  an  action  in  his  own  name, 
without  alleging  an  endorsement  to  him.  Billings  v.  Jane,  11 
Barb.  620. 

The  maker  of  a  note  wrongfully  taken  from  him,  and  nego- 
tiated for  value  to  a  bond  fide  holder,  may  recover  of  the  wrong- 
doer the  value  of  that  note,  though  still  outstanding  when  the 
action  is  brought.     Becker  v.  Mathews,  5  Sandf.  439. 

With  respect  to  the  drawer,  it  was  held,  in  Hides  v.  Hinde,  9 
Barb.  528,  6  How.  1,  that  it  is  competent  for  him  to  restrict  his 
liabilit}r,  in  like  manner  as  may  be  done  by  an  endorser.  The 
drawer,  in  that  case,  having  signed  as  "agent,"  and  the  fact 
that  he  was  so  being  known  to  all  parties,  he  was  held  not  to  be 
personally  bound.  The  previous  cases  on  the  subject  are  fully 
cited  in  the  report.  The  same  was  held  in  Conro  v.  Port  Henry 
Bon  Company,  12  Barb.  27,  affirmed  by  Court  of  Appeals,  18th 
April,  1854.  See,  also,  Walker  v.  Bank  of  the  State  of  New 
York,  13  Barb.  616. 

In  Gardner  v.  Oliver  Bee  and  Company* s  Bank,  11  Barb.  558, 
where  the  payee  of  a  bill  of  exchange  had  come  in  under  the 
insolvency  of  the  acceptor,  and  received  a  dividend  out  of  his 
estate,  whereby  the  latter  was  discharged  from  all  liability,  it 
was  held  that,  by  his  taking  that  course,  the  drawer  was  exone- 
rated. 

In  Pratt  v.  Gulick,  13  Barb.  297,  it  was  held  that  an  independ- 
ent action  could  be  maintained  on  a  promissory  note,  uncondi- 
tional on  its  face,  though  given  originally  as  part  of  the  terms  of 
an  uncompleted  contract. 

An  instrument,  informal  on  its  face  as  a  promissory  note,  as  an 
order  to  pay  for  wheat  in  store  at  a  certain  price,  may  neverthe- 
less be  sued  upon  as  a  special  agreement.  Bent  v.  Hodgman,  15 
Barb.  274. 

In  Conro  v.  The  Port  Henry  Iron  Company,  12  Barb.  27,  it  is 
held  that  a  corporation  is  liable  upon  a  draft  drawn  or  accepted 
by  a  party  authorized  for  that  purpose,  though  the  corporate  name 
be  not  mentioned  in  such  draft,  if  it  be  drawn  or  accepted  under 
a  name  adopted  by  the  corporation  :  and  that  a  subsequent  rati- 
fication of  the  acts  of  an  agent  of  that  description,  will  be  equi- 
valent to  an  original  authority. 

In  Graves  v.  Friend,  5  Sandf.  568,  the  taking  a  note  on  "  ac- 
count, without  recourse,"  was  held  to  be  an  absolute  payment, 


400  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

and  that  no  action  could  be  subsequently  maintained  on  account 
of  the  indebtedness  for  which  that  note  had  been  taken,  the 
maker  not  having  paid  it.  It  was  likewise  held  that  parol  evi- 
dence could  not  be  received,  to  show  that  such  taking  was  only 
conditional  and  not  absolute. 

Sureties  and  Guaranties.'] — Analogous  to  the  question  as  to 
the  liability  on  a  bill  or  promissory  note  is  that  of  sureties  or 
guaranties  on  the  same  or  similar  instruments,  and,  therefore, 
the  most  convenient  juncture  at  which  to  cite  the  recent  cases 
on  that  point,  will  be  the  present. 

In  Gardner  v.  Oliver  Lee!s  Bank,  11  Barb.  558,  above  cited, 
the  acceptance  of  a  dividend  under  the  insolvency  of  the  ac- 
ceptor, was  held  to  be  sufficient  to  discharge  the  endorser,  as 
before  noticed.  See  likewise  various  cases  in  relation  to  the 
endorser's  liability,  cited  under  the  previous  head. 

In  Mams  v,  Haiglit,  14  Barb.  76,  it  was  in  like  manner  de- 
cided, with  reference  to  a  guaranty  of  a  judgment  being  col- 
lectable, that  due  diligence  in  the  attempt  to  collect  it  was  a 
condition  precedent  to  the  guarantor's  liability ;  unreasonable 
delay  in  issuing  ■  execution  was  held  to  be  sufficient  to  effect  a 
discharge  of  the  latter,  unless  such  delay  be  occasioned  by  his 
own  acts,  in  which  case  he  will  still  be  liable. 

In  Bigelow  v.  Benton,  14  Barb.  123,  it  was  held,  on  the  same 
principle,  that  the  terms  of  a  guaranty  must  be  strictly  com- 
plied with,  or  the  guarantor  will  not  be  bound.  It  is  a  claim 
"  strictissimi  juris."  See  to  the  same  effect  Leeds  v.  Dunn,  Notes 
of  Court  of  Appeals,  31st  Dec,  1853. 

In  Enos  v.  Thomas,  4  How.  48,  it  was  held  that  a  contract, 
with  a  guaranty  signed  at  its  foot,  might  be  considered  as  one 
instrument,  and  sued  on  as  such.  In  Brewster  v.  Silence,  how- 
ever, 11  Barb.  144,  it  was  held,  on  the  contrary,  that  such  a  gua- 
ranty, endorsed  on  a  promissory  note,  must  be  looked  upon  as 
a  separate  and  distinct  undertaking,  though  made  for  the  same 
object,  uiid  will  b<-  void  under  the  Statute  of  Frauds,  unless  a 
consideration  be  expressed  upon  it;  and  this  decision  has  been 
affirmed  by  the  Court  Of  Appeals,  12th  April,  1853.  See,  to  the 
i  effect,  l>  Ridder  v.  Schenw rh.urn,  10  Barb.  638,  in  relation 
to  a  guaranty  to  fulfil  an  agreement. 

Where  a  party  signs  as  surety,  a  special  averment  to  that 
effect  should  be  made.     See  Balcom  v.  Woodruff,  above  cited. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS,  401 

A  surety  who  pays  the  debt  of  his  principal,  is  entitled  to  a 
full  subrogation,  and  to  every  remedy  which  the  creditor  so  paid 
off  possessed,  and,  for  this  purpose,  to  an  assignment  of  the  ori- 
ginal debt,  and  the  securities  for  it ;  and  also  to  the  benefit  of 
any  judgment  which  may  have  been  recovered.  Goodyear  v. 
Watson,  14  Barb.  481. 

One  of  several  sureties,  who  has  paid  the  debt  of  the  princi- 
pal, may  maintain  an  action  against  the  others,  for  their  propor- 
tional parts  of  the  total  amount,  nor  is  parol  proof  admissible 
to  qualify  such  liability.     Norton  v.  Coons,  2  Seld.  33. 

Checks  or  Drafts.'] — Actions  of  this  nature  being  in  close  ana- 
logy with  those  founded  on  a  bill  or  promissory  note,  and  being 
in  many  respects  subject  to  the  same  general  principles,  come 
up  next  for  consideration,  in  the  natural  order  of  arrangement. 

The  law  as  to  certified  checks  is  laid  down  in  Willets  v. 
The  Phoenix  Bank,  11  L.  0.  211,  and  it  is  held  that  the  certi- 
fying a  check  is  not  a  mere  declaration  of  an  existing  fact, 
but  creates  a  new  and  binding  obligation  on  the  part  of  the 
bank  itself,  and  which  is  not  destroyed,  even  by  laches  on  the 
part  of  the  holder.  It  is  also  held  that  a  check,  payable  to  the 
order  of  bills  payable,  is,  in  judgment  of  law,  payable  to  the 
bearer. 

In  Bowen  v.  Newell,  5  Sandf.  326,  it  is  held  by  the  Superior 
Court  that  a  written  order  upon  a  bank  in  another  State,  for 
payment  of  a  sum  of  money,  payable  on  a  future  day,  is  a 
check,  and  not  a  bill  of  exchange,  and,  as  such,  is  not  entitled 
to  days  of  grace.  It  was  also  held  that  the  lex  hci  governs,  not 
only  as  to  the  time,  but  the  mode  of  presentment ;  and,  the 
order  on  that  case  being  drawn  on  a  bank  in  Connecticut,  where 
no  days  of  grace  are  allowed  under  similar  circumstances,  it 
was  held  that,  the  check  having  been  presented  and  protested 
according  to  that  law,  the  endorser  was  duly  charged.  The 
former  conclusion  has  however  been  dissented  from,  and  the 
decision  has  been  reversed  by  the  Court  of  Appeals ;  Notes  of 
Court  of  Appeals,  12th  April,  1853;  and  a  new  trial  was  ordered, 
and  has  been  had.  The  Superior  Court  still  adhere,  however, 
to  the  second  point,  and  a  decision  similar  to  the  first  has  been 
again  given,  and  affirmed  at  General  Term,  founded  on  the  view 
above  taken  as  to  the  lex  loci  being  the  governing  rule.  This 
view  as  to  the  lex  loci  seems  to  be  supported  by  the  case  of 
26 


402  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

Cook  v.  Litchfield,  5  Sandf.  330,  10  L.  0.  330,  affirmed  by  the 
Court  of  Appeals,  31st  December,  1853. 

Actions  on  3mds.~\ — To  this  class  of  actions  the  amendment 
in  sec.  152,  above  commented  upon,  may  seem  to  be  more  gene- 
rally applicable;  and  the  complaint  may,  in  such  cases,  be 
framed  accordingly,  simply  averring  the  making  of  the  bond, 
giving  a  copy,  alleging  non-payment,  and  claiming  the  amount 
due  ;  though,  even  in  these  cases,  the  old  form  of  alleging  the 
making  and  effect  of  the  bond,  and  its  non-payment,  seems  to 
be  fully  adequate.  Where,' however,  the  condition  of  the  bond 
is  in  any  manner  special,  it  would  be  most  advisable  to  give  a 
copy  of  the  provision  sued  under  ;  the  general  facts  of  the  case, 
and  also  those  of  the  non-performance  of  that  condition,  being 
clearly  and  distinctly  averred. 

Policies  of  Insurance^] — Of  an  analogous  nature  to  the  above, 
are  actions  upon  a  policy  of  insurance,  the  precise  form  of  com- 
plaint in  which  does  not  appear  to  have  been  made  the  subject 
of  special  adjudication.  It  is,  however,  easily  deducible,  by 
inference,  from  general  principles.  The  making  and  delivery 
of  the  policy,  and  payment  of  the  premium,  should,  in  the  first 
place,  be  averred.  The  substance  of  the  policy  itself  should 
then  be  clearly  and  succinctly  stated  ;  or,  if  the  question  be  one 
in  which  the  proper  construction  of  the  general  terms  of  the 
instrument,  or  of  any  particular  clauses  in  it,  are  likely  to  be 
drawn  into  question,  a  copy  of  the  whole  document,  or  of  the 
particular  clauses  in  it,  in  respect  of  which  the  controversy 
arises,  should  be  given ;  or,  which  will  often  be  found  a  very 
convenient  mode  of  averment,  a  copy  of  the  policy  may  be' 
annexed  to  the  complaint,  and  referred  to  as  forming  part  of  it, 
the  substance  of  it  being  shortly  averred  in  the  body.  In  marine 
cases,  the  facte  of  the  voyage  insured  upon  being  in  actual  pro- 
-:  at  tin-  time  of  the  loss,  and,  where  the  policy  is  an  open 
policy,  I  cessary  to  show  that  the  goods  claimed  upon 

wcr>  •  by  the  risk,  must  appear ;  and,  in  every  instance, 

the  fuels  of  the  lo  be  distinctly  and  clearly,  though  suc- 

cinctly, alleged.     r!'he  giving  ofydue  notice  of  claim,  and  of  due 
proof  of  and  also  that  the  time  allowed  to 

the  company  for  the  payment  of  the  risk  has  fully  elapsed, 
must,  in  the  last  instance,   be  distinctly  pleaded;    the  exact 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  403 

wording  of  the  provisions  of  the  policy  or  conditions,  being  in 
these  and  all  other  respects  strictly  followed,  in  framing  the 
necessary  averments. 

In  White  v.  The  Hudson  River  Insurance  Company ,  7  How.  341, 
it  was  held  that,  though  a  policy  of  insurance  must  state  cor- 
rectly what  is  insured,  it  is  not  necessary  that  the  particular 
interest  in  the  property,  or  the  reason  why  the  party  insures, 
should  also  be  expressed. 

Appeal  Bondsi] — In  Teall  v.  Van  Wyclc,  10  Barb.  376,  it  was 
held  that  an  action  was  maintainable  on  a  bond  of  this  nature, 
though  in  strictness  informal ;  the  objection  on  that  score  not 
having  been  made  when  it  was  originally  put  in,  but  suffered  to 
pass  in  silence. 

An  action  on  an  appeal  bond  to  the  Court  of  Appeals  cannot 
be  maintained,  where  the  appeal  has  been  dismissed  for  want  of 
prosecution,  and  not  decided  on  the  merits.  Such  a  dismissal 
is  not,  in  law,  an  affirmance  of  the  judgment  appealed  from. 
Watson  v.  Husson,  1  Duer,  242. 


§  131.    Averments  of  Fact — Continued. 

Replevin  and  Trover.'] — The  action  under  the  Code  for  the 
claim  and  delivery  of  personal  propert}7  is  analogous,  in  all 
respects,  to  the  old  action  of  replevin.  Roberts  v.  Randel,  & 
Sandf.  707,  5  How.  327,  3  C.  R.  190,  9  L.  0.  144;  McCurdy  v, 
Brown,  1  Duer,  101. 

In  this  class  of  actions,  therefore,  a  direct  and  issuable  aver- 
ment must  always  be  inserted,  that  the  goods  claimed  are  the 
property  of  the  plaintiff.  A  mere  allegation  that  he  was  entitled 
to  the  possession  of  those  goods,  and  of  facts  affording  evidence 
of  ownership,  will  not,  standing  alone,  be  sufficient,.  Vanden- 
burgh  v.  Van  Valkenburgh,  8  Barb.  217;  reported  on  another 
point,  1  C.  R  (N.  S.)  1G9. 

The  property  claimed  must,  too,  be  in  the  actual  possession 
or  control  of  the  party,  sued,  at  the  time  when  the  action  is 
brought,  unless  he  has  previously  parted  with  that  possession 
in  a  fraudulent  manner.  See  Roberts  v.  Randel,  3  Sandf.  707, 
5  How.  327,  3  C.  E.  190,  9  L.  O.  144,  overruling  Van  Keste  v.. 
Conover,  5  How.  143,  8  Barb.  509,  to  the  contrary  effect. 


404  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

The  authority  of  JRoberts  v.  Handel  is  fully  confirmed  by  Brock- 
way  v.  Burnap,  12  Barb.  347,  8  How.  188.  The  plaintiff  can 
only  recover  upon  a  legal  title;  he  must  show  an  absolute  or 
special  property,  giving  him  an  immediate  right  to  possession. 
The  burden  of  proof,  in  this  respect,  lies  upon  him ;  and,  if  he 
fail,  the  defendant  will  be  entitled  to  judgment,  without  proving 
the  title  set  up  in  his  answer.  McCurdy  v.  Brown,  1  Duer,  101. 
A  distinct  allegation  should,  therefore,  in  all  cases,  be  made, 
that  the  property  is  then  in  the  defendant's  possession;  or,  if 
he  has  parted  with  it,  in  fraud  of  the  action,  that  point  must  be 
distinctly  pleaded. 

Similar  principles  are  laid  clown,  with  reference  to  an  action 
in  the  nature  of  trover,  in  The  Matteaivan  Company  v.  Bentley, 
13  Barb.  611.  An  action  of  this  nature  cannot  be  brought 
against  a  party  not  guilty  of  an  actual  conversion,  and  who  has 
never  had  possession  of  the  property,  but  merely  claims  a  lien 
upon  it.    . 

The  pleader  must,  of  course,  take  care  that  his  prayer  corre- 
sponds with  his  statement.  If  he  demand  judgment  for  the 
value  of  the  property,  or  damages  for  its  conversion,  he  cannot 
proceed  to  recover  the  property  itself  in  replevin.  The  reme- 
dies are  incompatible,  and  cannot  be  joined;  and  the  nature  of 
the  relief  demanded  in  the  prayer  of  the  complaint,  will  deter- 
mine the  class  of  the  action.  See  Maxwell  v.  Farnam,  7  How. 
236;  Spalding  v.  Spalding,  3  How.  297,  1  C.  E.  61;  Bows  v. 
Green,  3  How.  377 ;  and  other  cases,  before  cited,  under  the 
head  of  Misjoinder  of  Causes  of  Action. 

Goods  sold,  <£c] — Forms  will  be  found  in  the  Appendix,  for 
the  complaint,  in  cases  of  goods  sold  and  delivered,  and  work 
and  labor  dime.  In  the  former  case,  allegations  of  sale  and 
delivery  will  be  sufficient;  a  promise  to  pay  will  be  implied^ 
and  need  riot  bo  pleaded  in  form.  See  Gknny  v.  Hitchins,  4 
How.  98,  2  C  R.  56;  Tucker  v.  Eushtcm,  2  C.B.  59, 7L.  0.815; 
and  Nee/us  v.  Khppenburgh%  2  ('.  R.  7(5,  above  referred  to.  The 
word  "due,"  as  used  in  a  complaint  of  this  nature,  imports,  not 
merely  indebtedness,  but,  that  the  time  when  payment  should 
have  be<-.n  made  has  elapsed,  and  will  be  sufficient  to  sustain  the 
action.  Allen  \.  Patterson^  Court  of  Appeals,  30th  December, 
1852.  Where,  tOO,  a.  .'-ale  has  been  made  to  an  agent,  it  should 
be  averred   as  one  to  the  principal.      Dollner  v.  Gibson,  before 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  405 

cited.  On  the  form  of  the  complaint  for  work  and  labor,  no 
question  as  yet  seems  to  have  arisen.  In  cases  of  the  above 
nature,  a  copy  of  the  account  alleged  need  not,  as  before  referred 
to,  be  stated  at  length  in  the  complaint.  It  will  be  sufficient,  if 
the  plaintiff  afterwards  deliver  a  verified  copy  to  the  defendant, 
in  the  manner  prescribed  by  sec.  158  of  the  Code. 

General  Remarks.] — Of  course,  the  above  remarks,  though 
embracing  many,  do  not  profess  to  include,  still  less  to  give 
forms  for  every  species  of  complaint,  which  will  be  necessary  in 
practice.  The  same  general  principles,  however,  apply  to  all, 
and  all  must  now  be  framed  upon  the  same  model,  mutatis 
mutandis . 

The  foregoing  observations  have  more  peculiar  reference  to 
actions,  where  the  relief  demanded  would,  under  the  old  system, 
have  been  more  peculiarly  of  common  law  cognizance.  The 
class  of  equitable  actions,  if  they  may  so  be  termed,  remains  to 
be  noticed,  and  likewise  those  with  reference  to  real  estate, 
which  will  be  separately  treated. 

§  132.    Averments  of  Fact — Continued. 

Equitable  Actions — Averments  in  General.'] — The  considerations 
with  respect  to  the  general  form  of  averment  in  these  cases,  have 
already  been  most  fully  entered  upon,  and  the  cases  fully  cited, 
in  chapter  I.  of  the  last  division  of  this  work.  The  safest  guide 
which  can  be  taken  with  reference  to  the  averments  of  this 
nature,  will,  perhaps,  be  a  well-drawn  bill  in  chancery  under  the 
old  practice :  carefully  retrenching,  in  the  process  of  adapting 
that  form  to  the  present  requisites,  every  verbal  surplusage, 
and  every  merely  probative  allegation.  Thus  framed,  the  com- 
plaint will  conform  to  the  law,  as  laid  down  by  a  large  majority 
of  the  cases  above  referred  to,  and  particularly  in  Howard  v. 
Tiffany,  3  Sandf.  695,  1  C.  E.  (N.  S.)  99;  Coit  v.  Coit,  6  How. 
53;  Minor  v.  Terry,  6  How.  208,  1  C.  E.  (N.  S.)  384;  and  Getty 
v.  The  Hudson  River  Railroad  Company,  6  How.  269,  10  L.  0.  85. 

Creditor's  Bill.'] — The  old  proceeding  by  a  creditor's  bill, 
remains,  in  effect,  unchanged;  but  such  proceeding  must  be 
brought  in  the  ordinary  form  of  a  complaint  under  the  Code,  and 
not  according  to  the  former  practice.  Rogers  v.  Hern,  2  C.  E.  79. 


406  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

Before  a  creditor's  bill  can  be  filed,  it  is  essential  that  execu- 
tion should  have  been  issued  into  every  county  in  which  any 
one  of  the  defendants  resides,  and  returned  unsatisfied,  and  also 
into  every  county  in  which  they,  or  any  of  them,  own  real 
estate;  a  transcript  of  the  plaintiff's  judgment  being  previously 
filed  in  each  such  county,  in  order  to  render  the  execution  effec- 
tual :  and  the  facts  should  be  alleged  accordingly — Millard  v. 
Shaw,  4  How.  137;  but,  if  the  defendant  have  consented  to 
waive  any  of  the  above  prerequisites,  a  simple  allegation  of  that 
consent  will  be  sufficient,  without  giving  all  the  details. 

An  action  of  this  nature  is  maintainable,  upon  an  execution 
issued,  and  returned  unsatisfied,  before  the  passing  of  the  Code, 
without  special  leave  of  the  court.  It  is  not,  in  its  nature,  an 
action  upon  a  judgment,  but  rather  a  supplementary  proceeding, 
for  the  purpose  of  carrying  that  judgment  into  effect.  Dunham 
v.  Nicholson,  2  Sandf.  686. 

Nor  are  the  special  provisions  of  the  Code,  in  relation  to 
supplementary  proceedings,  a  bar  to  the  assertion  of  this 
description  of  remedy,  for  the  purpose  of  obtaining  specific  equi- 
table relief.     Goodyear  v.  Beits,  7  How.  187. 

The  provisions  of  the  Kevised  Statutes,  (see  2  R.  S.  173,) 
made  it  a  condition  precedent  to  a  proceeding  of  this  nature, 
that  the  plaintiff  should  have  an  equitable  interest,  to  the  value 
of  $100.  In  Quick  v.  Keeler,  2  Sandf.  231,  it  is  held  that  this 
restriction  is  superseded  by  the  Code,  and  that  any  creditor 
may  now  take  that  measure,  on  complying  with  its  provisions, 
and  with  those  of  the  Kevised  Statutes  upon  the  subject.  In 
Shepard  v.  Waller,  7  How.  46,  the  contrary  conclusion  is  come 
to.  The  question,  therefore,  remains  unsettled  by  positive  au- 
thority, though  the  more  liberal  view  appears  preferable. 

In  Tripp  v.  Child*,  14  Barb.  85,  it  was  held  that  this  descrip- 
tion of  remedy  was  obtainable  by  a  judgment  creditor,  with  a 
V  I'v.  to  enforce  a  claim  against  his  debtor's  future  earnings,  and 
to  avoid  an  agreement  entered  into  for  the  purpose  of  depriving 
tin-,  creditors  of  that  benefit. 

In  Conro  v.  Port  Henry  Iron  Company,  12  Barb.  27,  it  was 
I  that  different  creditors  of  a  corporation,  having  a  common 
interest  ID  the  relief  SOUght,  may  properly  unite  in  a  proceed  ing- 
ot' this  nature.  In  the  same  case,  the  doctrine  of  multifarious- 
will  be  found  fully  considered,  both  generally  and  with 
relation  to  this  class  of  .suits  in  particular. 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  407 

A  creditor  at  large,  cannot  maintain  an  action  to  set  aside  an 
assignment  as  void  and  fraudulent.  The  rule  that  such  an 
action  can  only  be  brought  by  a  judgment  creditor,  has  not 
been  altered  by  the  Code.     Neustadt  v.  Joel,  12  L.  O.  148. 

In  Hazard  v.McFarland,  Court  of  Appeals,  18th  April,  1854, 
a  personal  decree,  against  creditors  at  large,  who  had  unduly 
obtained  possession  of  goods  belonging  to  the  debtor,  and  were, 
therefore,  charged  with  their  value  as  trustees  for  the  payment 
of  creditors,  was  affirmed  in  a  suit  of  this  kind,  instituted  by 
one  of  the  latter  class. 

The  subject  of  proceedings  of  this  kind  will  be  found  more 
fully  entered  upon  in  a  subsequent  chapter,  under  the  head  of 
Supplementary  Proceedings. 

Injunction.'] — "With  reference  to  injunction,  a  distinction  may 
probably  be  drawn  between  those  cases  where  that  remedy  is 
the  main  object  of  the  suit,  and  others  where  it  is  merely  sought 
collaterally.  Where  the  latter  is  the  case,  it  may  well  be  con- 
tended that  the  insertion  of  matter,  bearing  solely  upon  that 
injunction,  as  a  collateral  remedy,  and  not  going  to  the  estab- 
lishment of  the  main  cause  of  action,  is,  pro  tanto,  irrelevant, 
and  ought  not  to  appear  on  the  pleadings  at  all,  but  to  be  sub- 
stantiated by  separate  affidavit,  according  to  the  principles  laid 
down  in  Putnam  v.  Putnam,  2  C.  E.  64 ;  Milliken  v.  Carey,  5 
How.  272 ;  3  C.  K.  250 ;  and  other  cases  to  the  same  effect, 
before  cited.  Where,  however,  the  granting  of  an  injunction 
forms  either  the  sole  object  of  the  suit,  or  a  substantial  part  of 
the  relief  expressly  sought  in  it,  it  would  seem  that  this  cannot 
be  so ;  and,  in  cases  of  this  description,  averments  of  the  facts, 
showing  the  plaintiff's  right  to  that  remedy,  seem  not  merely 
advisable,  but,  in  some  instances,  even  indispensable.  See,  to 
this  effect,  Howard  v.  Tiffany,  and  Minor  v.  Terry,  before  referred 
to.  The  subject  of  injunction  in  general,  involving  of  necessity 
the  question  of  the  proper  averments  in  such  cases,  has  been 
already  considered. 

Partnership  Accounts.] — A  complaint  of  this  nature,  setting 

forth  a  partnership,  a  dissolution,  the  existence  of  unsettled 

accounts,  and  a  balance  in  favor  of  the  plaintiff,  is  prima  facie 

ood,  as  showing  a  sufficient  cause  of  action.    Ludington  v.  Taft% 

10  Barb.  447.  • 


408  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

A  suit  of  this  nature  is  maintainable  in  respect  of  a  special 
partnership,  as  well  after  as  before  the  dissolution  of  that  rela- 
tion.   Hogg  v.  Ellis,  8  How.  473. 

Where  one  partner  had  made  an  assignment,  it  was  held  that 
creditors  claiming  under  it  were  indispensable  parties  to  a  suit 
by  the  other  for  an  account.     Johnson  v.  Snyder,  8  How.  498. 

Specific  Performance.'] — As  a  general  rule,  the  specific  per- 
formance of  the  contract  of  an  adult  for  personal  services,  will 
not  be  enforced.     Haight  v.  Badgeley,  15  Barb.  499. 

The  contract  of  a  married  woman,  having  power  to  dispose 
of  property,  under  an  ante-nuptial  contract,  made  prior  to  the 
law  of  1848,  is  binding,  and  may  be  enforced  against  a  pur- 
chaser, by  her  assignee.     Van  Allen  v.  Humphrey,  15  Barb.  555. 

The  rule  with  regard  to  the  extent  of  the  vendor's  duty  to 
disclose  material  facts  in  relation  to  the  subject-matter  of  the 
contract,  will  be  found  fully  considered  in  Bench  v.  Sheldon,  14 
Barb.  66. 

A  parol  contract,  void  by  the  Statute  of  Frauds,  cannot  be 
enforced  in  a  direct  action  for  that  purpose;  though,  if  the 
vendor  have  fully  performed  his  part,  he  may  recover  the  bal- 
ance of  the  purchase-money.    Thomas  v.  Dickinson,  14  Barb.  90. 

In  relation  to  the  extent  to  which  an  offer,  made  by  mail,  is 
binding,  and  may  be  enforced  as  a  contract,  if  accepted  by  the 
opposite  party,  see  Vassar  v.  Camp,  14  Barb.  841. 

The  rule  of  law  that,  where  one  party  designs  to  rescind  a 
contract,  he  must  do  whatever  is  necessary  to  restore  the  other 
to  his  original  condition,  in  respect  to  the  thing  sold  and  the 
consideration  paid,  and  that,  before  suit;  and,  also,  that  he 
cannot  affirm  in  part  and  rescind  in  part,  will  be  found  fully 
considered  in  The  Matteawan  Company  v.Bentley,  13  Barb.  641. 
Thia  pule  is,  however,  inapplicable  to  a  case  where  the  vendor 
has  performed  hie  part  of  an  invalid  contract,  and  sues  for  the 
balance  of  pun-lmse-moncy.  It  holds  good  in  relation  to  valid 
contracts  only.  See  Thomas  v.  Dickinson,  14  Barb.  90,  before 
cited. 

Divorce^  A  complaint  for  divorce  on  the  ground  of  adultery 
will  be  insufficient,  where  it  contains  no  specification  of  the 
person  with  whom,  or  the  place  where  the  offence  was  commit- 
ted,    if  the  former  be  unknown,  ttfb  latter  should  be  specific- 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  409 

ally  stated,  Heyde  v.  Heyde,  4  Sandf.  692.  The  same  principle 
as  to  the  necessity  of  giving  a  full  and  definite  statement  in  re- 
lation to  the  acts  complained  of  is  equally  applicable  to  cases 
where  separation  only  is  sought ;  the  elements  of  time,  place, 
and  circumstances,  must  be  equally  borne  in  mind,  in  framing 
allegations  under  these  circumstances. 

Where  the  husband  is  plaintiff,  he  cannot  proceed,  after  the 
service  of  the  summons,  until  a  next  friend  has  been  appointed 
for  the  wife.  If  she  neglect  to  apply,  it  will  be  competent  for 
him  to  do  so.     Meldora  v.  Meldora,  4  Sandf.  721. 

General  Remarks—The,  Code  and  Rules  make  no  special  pro- 
vision, with  reference  to  the  proper  form  of  complaint  in  actions 
of  an  equitable  nature ;  nor  do  the  decided  cases  lay  down  any 
positive  rules  on  the  subject,  with  the  exception  of  the  few 
points  adverted  to.  Under  these  circumstances,  the  remark 
before  made  holds  good,  that,  in  this  class  of  cases,  a  well- 
drawn  bill  in  chancery,  under  the  old  practice,  will  form  the 
safest  guide,  with  the  retrenchments  and  precautions  before  al- 
luded to.  The  exact  provisions  of  any  instrument,  sought  to 
be  either  specifically  enforced,  or  duly  interpreted,  should  be 
set  forth  in  all  cases ;  verbatim,  where  those  provisions  are 
either  short  or  special ;  or  else,  with  sufficient  detail  and  cer- 
tainty to  enable  the  court  to  arrive  at  the  exact  facts  in  con- 
troversy, from  the  pleadings  themselves,  without  the  necessity 
of  having  recourse  to  statements  out  of  the  record. 

§  133.  Averments  of  Fact ,  continued :  Real  Estate  Cases. 

The  proper  form  of  complaint,  in  those  cases  having  peculiar 
reference  to  real  estate,  or  to  matters  arising  out  of  it,  remains 
to  be  treated  of,  before  quitting  the  subject  of  the  proper  aver- 
ments in  complaint,  separately  considered. 

In  most  instances,  remedies  of  this  nature  are  matters  spe- 
cially provided  for  by  the  Eevised  Statutes;  and,  at  first, 
doubts  were  entertained  as  to  whether  this  class  of  actions 
could  be  brought  at  all  under  the  Code.  See  Traver  v.  Traver, 
3  How.  851,  1  C.  E.  112.  The  contrary,  however,  has  been 
settled  by  the  following  series  of  decisions: — Watson  v.  Brig- 
ham,  3  How.  290,  1  C.  R.  67;  Backus  v.  Strtwell,  3  How.  318, 
1  C.  R.  70 ;  Myers  v.  Basbaclc,  4  How.  83,  2  C.  R.  13 ;  Bow  v. 


410  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

Row,  4  How.  133;  Townsend  v.  Townsend,  2  Sandf.  711;  Reed 
v.  Child,  4  How.  125,  2  C.  E.  69 ;  Hammersley  v.  Hammersley, 
7  L.  0.  127;  Vanderwerker  v.  Vanderwerker,  7  Barb.  221.  These 
authorities  establish,  beyond  a  doubt,  that,  in  all  cases  where, 
under  the  old  practice,  a  party  was  at  liberty  to  proceed, 
either  at  equity,  or  by  petition,  or  otherwise  under  the  special 
provisions  of  the  Eevised  Statutes,  he  has  still  the  same  option; 
an  action  under  the  regular  forms  of  the  Code  being  substituted 
for  the  former  bill  in  equity  in  such  cases. 

In  all  real  property  actions,  brought  under  the  Code,  the 
law  of  the  case  is  to  be  governed  by  the  Revised  Statutes,  the 
practice  by  the  present  mode  of  procedure.  The  saving  of 
the  former  is  effected  by  sec.  455  of  the  present  measure,  as 
follows : 

§  455.  The  general  provisions  of  the  Revised  Statutes  relating  to 
actions  concerning  real  property,  shall  apply  to  actions  brought 
under  this  act,  according  to  the  subject-matter  of  the  action,  aud 
without  regard  to  its  form. 

Ejectment.~] — The  first  proceeding  to  be  considered,  is  the 
action  under  the  Code,  which  stands  in  place  of  ejectment 
under  the  old  practice.  At  1  C.  R.  19,  will  be  found  an  essay 
on  this  subject.  The  conclusion  is  clear,  i.  e.,  that  all  the  old 
formalities  on  the  subject  are  entirely  swept  away,  and  that 
the  action  must  hereafter  be  conducted  in  strict  accordance 
with  the  new  practice,  the  remedy  for  mesne  profits  being 
joined  in  the  same  proceeding. 

The  old  practice  of  proceeding  against  the  tenant  alone  is 
swept  away  by  the  recent  alterations;  and,  as  a  general  rule, 
it  will  be  proper  to  join,  as  defendants,  all  persons  having 
an  interest  in  the  property,  which  will  be  affected  by  a  re- 
covery. Wu/dorph  v.  Bort/e,4:  How.  358;  Townsend  v.  Townsend, 
2  Sandf.  711  ;  Fosgate  v.  Herkimer  Mann/,  and  Hydr.  Qompanyi 
L2  Barb.  852.  This  is  however  not  strictly  necessary,  though 
erallj  proper,  with  regard  to  persons  not  in  possession  of 
the  premises,  though  claiming  as  interest  therein.  Van Buren  v. 
Cochburn,  11   Barb.  1  is. 

A  joint  action  of  this  nature  brought  by  the  wife,  owner 
of  the  fee,  and  the  husband,  as  tenant  by  the  curtesy  initiate, 
was  sustained  in  Tngraham  v.  Baldwin,  12  Barb.  9;  affirmed 
by  the  Court  of  Appeals,  7th  Oct.,  1853.    Sec,  likewise,  Ripple 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  4H 

v.  Gilborn,  8  How.  456,  below  cited,  under  the  head  of  Partition, 
as  to  an  inchoate  right  of  dower. 

Ejectment  to  recover  dower  will  lie  against  a  tenant  for  an 
estate  less  than  freehold,  and  before  dower  has  been  assigned, 
or  admeasured;  provision  being  made  in  the  judgment  record, 
for  the  appointment  of  commissioners  to  admeasure,  as  regards 
the  lands  in  the  possession  of  the  defendant.  Ellicott  v.  Mosier, 
11  Barb.  574.  The  acceptance  of  an  assignment  of  rents,  will 
not  bar  the  widow,  unless  it  appear  they  will  endure  for  her 
life. 

The  rule  that  the  plaintiff  in  ejectment  is  bound  to  strict 
proof  of  his  title,  holds  good  under  the  new  as  under  the 
old  practice.  Fosgate  v.  Herkimer  Man.  and  Hyd.  Company,  12 
Barb.  352. 

In  order  to  ground  a  recovery  for  mesne  rents  and  profits, 
as  well  as  for  the  land  itself,  the  joinder  of  which  causes  of 
action  is  now  allowable,  the  complaint,  in  addition  to  the 
allegations  necessary  to  sustain  a  strict  ejectment,  should  also 
contain,  in  substance,  the  same  allegations  which  the  Eevised 
Statutes  required  to  be  inserted  in  the  suggestion  for  recovery 
of  mesne  profits.  Livingston  v.  Tanner,  12  Barb.  481.  If  omit- 
ted, the  recovery  on  that  ground  will  be  barred,  in  that  parti- 
cular proceeding,  though  it  seems  that  it  is  still  competent 
for  the  plaintiff  to  bring  a  separate  action,  as  heretofore. 

In  Tompkins  v.  White,  8  How.  520,  it  was  held,  that  a  claim 
against  one  of  two  defendants,  seeking  to  recover  moneys  al- 
leged to  have  been  received  by  him  on  account  of  rents  of  a 
joint  estate,  without  specifying  any  particulars,  could  not  be 
joined  with  a  Cause  of  action  in  ejectment,  for  the  recovery  of 
the  estate  itself,  against  both ;  and  a  demurrer  was  allowed  on 
that  ground.     They  were  not  shown  to  be  "  mesne  profits." 

The  form  of  a  complaint,  under  the  hew  practice,  will  be 
found  in  the  Appendix.  The  plaintiff  should,  of  course,  make 
a  distinct  and  positive  averment  as  to  his  title,  and  will  have  to 
prove  it  at  the  trial,  as  formerly,  unless  admitted  or  not  denied 
by  the  answer.  On  this  account  it  would  be  well,  in  all  cases, 
to  make  that  averment  as  specific  as  possible  ;  and  so  to  frame 
it,  as  that  an  admission  or  non-denial  of  it  by  the  defendant, 
will  amount  to  an  admission  of  the  whole  case.  The  points 
above  noticed  as  to  the  recovery  of  mesne  profits  should  also 
be  carefully  looked  to.     The  plaintiff  can  only  recover  "  secun- 


412  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

dum  allegata"  and  will  be  bound  to  strict  proof  in  all  cases.  See 
Fosgate  v.  Herkimer  Manufacturing  and  Hydraulic  Company,  and 
Livingston  v.  Tanner,  above  cited. 

The  subject  of  the  notices  which,  are  requisite,  on  the  com- 
mencement of  this  and  other  real  estate  actions,  will  be  found 
treated  of  at  the  end  of  the  present  chapter. 

Partition.'] — The  next  real  estate  action  to  be  mentioned  is 
that  for  partition  of  an  estate — a  proceeding  of  a  peculiarly  spe- 
cial and  important  nature.  Precisely  the  same  provision  on 
this  subject  as  that  above  cited  with  reference  to  real  actions  in 
general,  is  effected  by  sec.  448.  The  law  in  partition  cases  is 
still  to  be  sought  for  in  the  Revised  Statutes ;  the  practice,  in 
all  cases  where  the  proceeding  is  by  action,  is  to  be  governed 
by  the  Code.  The  form  of  a  complaint  in  partition,  will  be 
found  in  the  Appendix. 

Every  party  directly  or  indirectly  interested  in  the  corpus  of 
the  estate  itself  which  is  sought  to  be  divided,  at  the  time  when 
the  action  is  brought,  must,  of  necessity,  be  joined;  except 
encumbrancers,  who  may  or  may  not  be  so,  at  the  plaintiff's 
election. 

Parties,  however,  who  have  parted  with  their  title  before  the 
action  is  commenced,  need  not,  and  cannot  be  joined;  and,  if 
they  are,  the  proceeding  so  taken  cannot  properly  be  sustained. 
Vanderwerker  v.Vanderiverker,  7  Barb.  221. 

In  Bogardus  v.  Parker,  7  How.  305,  it  was  held,  that  a  ques- 
tion as  to  the  claim  of  a  defendant  to  a  specific  lien  on  the  es- 
tate itself,  might  properly  be  raised  by  the  complaint  in  a  suit 
of  this  nature,  and  an  account  prayed  for  and  taken  in  respect 
of  such  claim. 

In  Brovmson  v.  Gifford,  8  How.  389,  it  was  held,  that  the 
husband  of  the  married  woman,  entitled  to  a  separate  estate  in 
the  premises  sought  to  be  partitioned,  could  not  properly  be 
joiuf •' I  with  her  as  plaintiff  An  executor  and  trustee,  as  such, 
but  who  had  cot  qualified,  was  also  held  to  have  been  unneces- 
!y  joined  as  defendant.  The  wife  of  another  defendant 
entitled  to  an  interest,  was  held  to  have  been  properly  joined  in 
re  pect  of  her  inchoate  right  of  dower:  and  many  other  points 
in  relation  to  parties  in  this  form  of  action,  will  be  found  con- 
sidered  in  the  report. 

J  u  Ripple  v.  GHlborn,  8  How.  450,  the  wife  of  a  plaintiff  was 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  413 

held  to  be  a  proper  and  necessary  party  as  co-plaintiff,  in  re- 
spect of  her  inchoate  right  of  dower.  See,  also,  Ingraham  v. 
Baldwin,  above  cited  under  the  head  of  Ejectment,  in  relation 
to  the  interest  of  a  husband,  as  tenant  by  the  curtesy  initiate. 

The  plaintiff  in  this  form  of  suit  must  be  in  actual  or  con- 
structive possession  of  his  undivided  share;  and,  therefore, 
when  the  complaint  shows  that  the  legal  title  is  in  a  third  per- 
son, as  trustee,  the  defect  will  be  fatal.  Stryker  v.  Lynch,  11  L.  0. 
116.  In  the  same  case  it  was  held  that  it  is  not  sufficient,  in 
this  proceeding,  to  allege  that  a  defendant  claims  some  adverse 
interest,  and  is  therefore  a  proper  party.  The  rule  that  ad- 
verse titles  are  not  to  be  tried  in  partition  is  not  changed  by 
the  Code,  and  the  nature  of  every  claim  against  the  estate 
must,  of  necessity,  be  stated. 

The  complaint  in  partition  must  state,  distinctly  and  accu- 
rately, the  exact  circumstances  in  relation  to  the  interests  of  all 
parties ;  and,  where  those  interests  are  derived  under  any  pe- 
culiar or  doubtful  provision,  it  will  be  far  better  to  set  forth 
that  provision  verbatim,  instead  of  merely  abstracting  it :  which 
may  be  done  with  reference  to  instruments  or  circumstances  of 
an  ordinary  nature. 

Although  every  necessary  party  must  be  joined  in  a  suit  of 
this  description,  and  it  will  often  be  expedient  to  make  encum- 
brancers defendants,  with  a  view  to  the  due  adjustment  and 
apportionment  of  their  charges,  the  plaintiff,  in  the  latter  case, 
should,  if  possible,  obtain  the  consent  of  the  other  parties  to 
such  introduction ;  for,  if  he  be  held  to  have  made  it  unnecessa- 
rily, he  will  otherwise  be  liable  for  the  additional  costs;  Ham- 
inersley  v.  Hammersley,  7  L.  O.  127. 

Admeasurement  of  Dower. .] — Of  a  very  similar  nature  to  parti- 
tion, is  an  action  brought  by  a  widow  for  the  admeasurement 
of  her  dower.  Relief  of  this  nature  was  granted  by  the  Su- 
perior Court,  in  Townsend  v.  Townsend,  2  Sandf.  711,  and,  ob- 
jections having  been  taken  that  the  defendants  were  not  then 
in  actual  possession  of  the  lands  there  in  question,  and  also 
that  the  action  was  brought  within  six  months  after  the  hus- 
band's death,  those  objections  were  overruled. 

.  The  widow's  right  to  this  peculiar  remedy,  does  not  however 
preclude  her  from  maintaining  ejectment  against  a  tenant, 
before  her  dower  has  been  assigned  or  admeasured,  though, 


414  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

in  a  judgment  taken  by  her  under  such  circumstances,  pro- 
vision will  be  made  for  the  latter  purpose.  See  Ellicott  v. 
Mosier,  before  cited  under  the  head  of  Ejectment. 

The  complaint  in  this  case,  should  contain  a  full  description 
of  the  land  on  which  the  dower  attaches,  with  definite  and 
positive  averments  of  the  husband's  seisin  and  death,  and  of 
the  widow's  right  to  dower ;  and,  also,  that  such  right  has  not 
been  barred,  either  by  express  provision  made  for  her,  or  re- 
lease or  consent  on  her  part ;  or,  if  she  have  exercised  her 
election  between  her  dower  and  a  provision  made  for  her,  that 
election  should  be  specially  pleaded.  The  prayer  for  relief 
should  be  in  precise  analogy  to  that  given  in  the  form  of  com- 
plaint in  partition,  "  mutatis  mutandis." 

By  the  recent  amendment  in  sec.  307,  a  previous  demand  and 
refusal  is  made  a  necessary  condition  precedent  to  an  action 
of  this  nature,  as  far  as  regards  the  recovery  of  costs,  which 
cannot  otherwise  be  claimed. 

Nuisance  and  Waste!] — The  former  action  of  waste,  and  writ 
of  nuisance,  are  abolished  by  sections  450  and  453.  The  pro- 
per form  of  proceeding  in  these  cases,  is  now  by  an  action  for 
relief  and  damages,  under  the  present  forms.  In  waste,  the 
relief  demanded  may  include  forfeiture  of  the  estate  of  the 
party  offending,  and  eviction  from  the  premises ;  and,  by 
section  451,  the  law  in  those  cases,  as  laid  down  in  the  Revised 
Statutes,  irrespective  of  the  provisions  which  prescribe  the 
form  of  the  action  to  be  brought,  is  specially  saved.  A  limita- 
tion is,  however,  imposed  by  sec.  452,  on  the  remedy  of  for- 
feiture and  eviction,  which  cannot  be  obtained,  unless  the  in- 
jury to  the  reversion  shall  be  adjudged  to  be  equal  to  the  value 
of  the  tenant's  estate,  or  to  have  been  done  in  malice.  A 
distinct  averment  to  this  effect  should,  therefore,  be  inserted  in 
the  complaint,  in  all  cases  where  relief  of  this  nature  is  sought, 
in  order  to  ground  the  introduction  of  evidence  upon  the  sub- 
ject. In  A  idem  v.  Hepburn,  3  Sandf.  668,  3  C.  E.  1G5,  9  L.  0. 
80,  5  How.  L88,  where  the  plaintiff  sought  a  judgment  of  this 
ire  in  connection  with  equitable  relief,  it  was  held  that  he 
could  not  obtain  both  in  the  same  proceeding,  but  must  be  put 
to  his  election.  The  complaint  should,  therefore,  under  similar 
ances,  be  framed  accordingly.  Of  course,  the  nature 
of  the  waste  complained  of,  and  the  title  of  the  party  seeking 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  415 

the  remedy,  must  be  distinctly  and  positively  stated,  in  order 
to  ground  the  right  to  any  relief  at  all.  And,  in  an  action  for 
a  nuisance,  the  nature  and  extent  of  the  act  complained  of,  and 
of  the  injury  resulting  therefrom  to  the  plaintiffs,  must  also 
be  clearly  and  positively  averred ;  in  order  at  once  to  ground 
a  claim  for  adequate  damages,  and  also  for  the  guidance 
of  the  court,  in  making  a.  proper  order  for  its  cessation  or 
removal. 

Determination  of  Claims.] — By  section  449,  it  is  provided 
that  proceedings  to  compel  the  determination  of  claims  upon 
real  property,  under  the  provisions  of  the  Eevised  Statutes,  (2 
E.  S.  313,)  may  be  prosecuted  by  action  under  the  Code.  The 
very  nature,  however,  of  these  proceedings,  commencing  as 
they  do  with  the  service  of  a  special  notice,  and  carried  on,  as 
they  are,  in  a  manner  totally  inconsistent  with  the  ordinary 
forms  of  an  action,  seems  to  render  this  impossible  in  practice, 
and  it  was  accordingly  so  held  in  Crane  v.  Sawyer,  5  How.  372  ; 

I  0.  RF  (N.  S.)  30.  The  remedy,  therefore,  iu  these  cases, 
seems  to  be  exclusively  under  the  forms  of  the  Kevised  Sta- 
tutes, and  not  to  be  otherwise  obtainable.     In  Stryker  v.  Lynch, 

II  L.  0.  116,  above  cited,  there  is  an  "obiter  dictum"  that  this 
remedy  is  obtainable  by  an  action;  but  the  reasoning  in  Crane 
v.  Sawyer  seems  unanswerable. 

By  the  recent  statute,  Laws  of  1854, -c.  116,  p.  276,  the 
2?owers  in  this  respect,  conferred  by  the  Eevised  Statutes,  in 
relation  to  proceedings  taken  by  individual  claimants,  are  ex- 
tended to  corporations,  so  far  as  they  can  be  applied,  and  bodies 
of  that  nature  are,  accordingly,  authorized  to  proceed  in  the 
same  manner;  it  being  made  a  prerequisite,  that  the  notice  re- 
quired by  the  Eevised  Statutes  should  be  subscribed  with  the 
name  and  place  of  residence  of  the  agent  or  attorney  of  the 
corporation  seeking  such  relief. 

This  provision  affords  strong  corroboration  of  the  correctness 
of  the  view  taken  in  Crane  v.  Saiuyer,  as  above  noticed;  the 
proceeding  under  the  forms  of  the  Eevised  Statutes  being,  not 
merely  recognized,  but  in  part  prescribed. 

Foreclosure.'] — The  last  proceeding  of  the  above  nature  is 
that  of  foreclosure.  A  form  of  complaint  in  this  proceeding  is 
given  in  the  Appendix. 


416  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

It  is  essential  that  the  nature  of  the  security,  its  due  record, 
and  the  defendant's  failure  to  pay  the  amount  of  principal  and 
interest,  shoul.d  be  distinctly  averred,  and  a  full  description  of 
the  premises  must  be  given,  in  order  to  form  an  adequate 
ground  for  the  relief  to  be  obtained  on  the  decree.  See  Kule 
46  and  47  of  the  Supreme  Court. 

Every  junior  encumbrancer,  known  at  the  time  of  the  bill, 
should  be  made  a  party,  and,  for  this  purpose,  the  records  should 
be  carefully  searched;  if  not,  the  whole  proceeding  will  be 
nugatory,  as  far  as  regards  the  rights  of  the  parties  omitted. 
The  wife  of  the  party  entitled  to  the  equity  of  redemption,  and 
also  the  widow  of  any  deceased  party  so  entitled,  must  also  be 
joined,  or  the  decree  will  be  -of  no  force  pro  tanto.  Denton  v. 
Nanny,  8  Barb.  618.  Where,  too,  a  widow  had  actually  been 
made  a  party  in  another  capacity,  no  issue  being  raised  as  to  her 
right  of  dower,  and,  in  that  capacity,  suffered  judgment  to  be 
taken  against  her  pro  confesso,  her  right  to  dower  was  held  not 
to  be  affected.  Her  claim  in  that  respect  was  paramount  to  the 
mortgage,  and,  therefore,  she  had  no  right  to  suppose  that  that 
claim  would  be  called  into  question,  whatever  might  be  the  case 
as  regarded  her  subsequent  interest.  Lewis  v.  Smith,  11  Barb. 
151,  7  L.  0.  292;  affirmed  by  Court  of  Appeals,  18th  April, 
1851;  12  L.  0.193. 

In  no  case  are  senior  encumbrancers  necessarjr  parties,  and  it 
would  seem  from  the  last  case,  that  they  are  not  even  proper 
ones,  unless  for  the  purpose  of  ascertaining  the  amount  of  their 
incumbrances,  in  order  that  the  same  may  be  duly  provided  for 
on  a  sale  taking  place.  They  cannot  be  made  parties,  for  the 
purpose  of  contesting  the  validity  of  their  prior  claims.  See 
likewise  Corning  v.  Smith,  2  Sold.  82,  and  cases  there  cited. 

In  the  city  of  New  York,  a  mortgagee  acquires  a  right  to 
redeem  the  premises,  as  soon  as  they  are  assessed  for  city  pur- 
l>v  such  payment  he  acquires  a  lien  on  the  premises, 
which  he  may  add  to  his  mortgage  debt,  and  collect  by  fore- 
closure.    Brevoort  v.  Randolph,  7  How.  398. 

Jn  framing  the  complaint  in  foreclosure,  care  must  be  taken 

conditions  of  repayment,   as  contained  in  the 

morl  elf,  and  not  merely  by  reference  to  the  bond;   or 

the  defendant  may  tender  an  issue  on  the  point,  and  delay  the 

entry  of  judgment.     Dimon  v.  Bridges,  8  How.  l<>. 

Where  infants  are  Lnt<  rested  in  the  estate  sought  to  be  fore- 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  417 

closed,  the  nature  of  their  interest,  and  whether  it  is  paramount 
or  subordinate  to  that  of  the  plaintiff,  must  be  shown  by  specific 
allegation.  The  ordinary  allegation,  that  such  infants  claim 
some  interest  in  the  premises,  is  not  sufficient,  as  the  facts  cannot 
be  taken  as  admitted  as  against  them,  and  there  must  be  some 
averment  to  sustain  the  requisite  proof.  Aldrich  v.  Lapham,  6 
How.  129,  1  C.  E.  (N.  S.)  408. 

It  seems  that  a  plaintiff  is  not  required  to  allege  or  to  estab- 
lish beforehand,  and  in  the#first  instance,  any  claims  he  may 
have  upon  the  mortgaged  premises,  independent  of  the  mort- 
gage he  seeks  to  enforce.  He  has  the  same  right  as  any  other 
person,  to  present  and  establish  a  claim  to  the  surplus  moneys 
after  sale ;  and,  if  necessary,  his  complaint  may  then  be  amended, 
on  an  application  made  after  that  surplus  has  been  ascertained. 
Field  v.  Hawxhurst,  9  How.  75. 

The  above  points  must,  of  course,  be  carefully  borne  in  mind 
in  preparing  the  complaint  in  cases  of  this  nature;  and,  in  gene- 
ral, where  any  party  is  interested  in  more  than  one  capacity, 
care  must  be  taken  to  frame  the  statements  so  comprehensively, 
as  to  include  every  possible  interest  which  such  party  may 
possess.  Of  course,  too,  any  peculiar  circumstances  connected 
with  the  securit}r,  as,  for  instance,  if  the  mortgagee  have  been  in 
possession,  must  be  distinctly  averred ;  and,  in  the  latter  case,  the 
results  of  any  accounts  between  the  parties,  which  will  tend 
to  show  the  exact  sum  then  due  in  respect  of  the  security,  must 
be  correctly  stated;  and  it  may  be  expedient  to  annex  copies  of 
the  accounts  themselves  to  the  complaint,  with  a  view  to  obtain 
an  admission  or  non-denial  of  their  correctness.  The  observation 
made  in  a  previous  part  of  the  chapter,  with  regard  to  fixing, 
the  venue  in  these  cases,  will  have  been  noticed.  It  must  be 
in  the  county,  or  one  of  the  counties,  where  the  premises  are 
situate,  irrespective  of  that  in  which  the  loan  itself  may  have 
been  actually  transacted. 

§  134.  Prayer  for  Relief. 

The  long  and  complicated  question,  as  to  the  proper  aver- 
ments in  the  different  forms  of  complaint,  having  thus  been 
disposed  of,  we  arrive,  in  the  third  place,  at  a  subject  of  even 
greater  importance,  though  not  of  equal  complexity,  i.  e.,  the 
proper  demand  of  the  relief  sought  for.  The  observations  on 
27 


418  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

this  subject  have,  however,  been  in  a  great  measure  anticipated, 
by  the  considerations  upon  sec.  167,  stated  at  the  outset  of  the 
chapter.  It  has  there  been  shown,  that  the  nature  of  the  action 
will  be  determined  by  this  part  of  the  complaint ;  and  that,  how- 
ever the  statements  in  the  body  of  the  pleading  may  show  a 
title  to  any  peculiar  species  of  relief,  apart  from  that  formally 
demanded,  the  relief  so  omitted  to  be  asked  for  cannot  be 
obtained.  See,  especially,  Spalding  v.  /Spalding,  3  How.  297, 
1  C.  R.  64;  Bows  v.  Green,  3  How.  377;  Chapman  y.  Webb,  6 
How.  390,  1  C.  E.  (N.  S.)  388;  Otis  v.  SOI,  8  Barb.  102  :  Cahoon 
v.  The  Bank  of  Utica,  4  How.  423,  3  0.  R  110;  Badgers  v. 
Badgers,  11  Barb.  595,  before  cited.  In  The  Commercial  Bank 
v.  White,  3  How.  292,  1  C.  R.  68,  it  was  considered  that  alter- 
native relief  could  not  be  demanded  in  respect  of  the  same 
transaction,  where  the  two  forms  of  relief  asked  for  fall  under 
two  distinct  classes  of  the  actions  enumerated  in  sec.  167,  inca- 
pable of  being  joined  under  the  provisions  of  that  section. 

The  proper  classification  of  the  action  is,  therefore,  above 
all,  most  important  to  be  attended  to  by  the  pleader,  in  framing 
his  prayer,  where  there  is  either  any  doubt  as  to  the  exact 
remedy  obtainable,  or  where  any  election  has  to  be  made 
between  different  forms  of  remedy,  obtainable  under  the  same 
state  of  circumstances.  In  this  latter  case,  above  all,  the  most 
careful  exercise  of  judgment  will  be  found  necessary.  Objec- 
tions of  this  nature  fall,  however,  more  peculiarly  under  the 
head  of  Demurrer,  and,  therefore,  it  would  be  premature  to  enu- 
merate them  here  in  detail.  In  the  chapter  devoted  to  that 
branch  of  pleading,  the  subject  in  general,  and  the  decisions  in 
reference  thereto,  will  be  found  fully  entered  upon. 

Where  a  simple  money  recovery  is  sought,  the  demand  of 
judgment  for  the  amount  claimed,  with  interest  from  the  date 
of  the  original  claim,  or  last  settlement  of  account,  is  all  that  is 
neces  tary.  In  actions  where  pecuniary  damages  are  alone 
I  for,  unaccompanied  by  other  relief,  the  form  is  even 
simpler,  the  demand  of  interest  being,  of  course,  incompatible; 
where,  however,  as  in  actions  in  respect  of  waste  or  nuisance, 
relief  i  required,  as  weU  as  damages,  it  must  not  be  forgotten 
to  be  asked  for. 

It  is  in  actions  for  relief,  as  such,  that  the  exercise  of  ingenu- 
ity and  thought  will,  above  all,  be  required,  as  regards  this 
portion  of  the  complaint,  on   the  due  framing  of  which  every 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  419 

tiling  will,  in  fact,  depend.  Every  possible  remedy  which  the 
court  may  have  in  its  power  to  grant,  under  the  peculiar  cir- 
cumstances, should,  therefore,  be  carefully  pondered  over,  and 
every  one  of  those  remedies  should  be  distinctly  and  in  terms 
asked  for;  unless,  under  the  circumstances  of  the  case,  it  be 
thought  better  to  waive  them  in  any  respect.  Injunction,  in 
particular,  cannot  be  granted  at  all,  in  respect  of  facts  existent 
at  the  date  of  the  complaint,  unless  that  remedy  be  specially 
prayed  for;  and,  where  the  appointment  of  a  receiver  is  part 
of  the  relief  sought  before,  or  as  part  of  the  judgment,  a  demand 
to  that  effect  must  also  be  inserted.  In  actions  for  the  recovery 
of  real  or  specific  personal  property,  it  must  not  be  forgotten, 
that  a  claim  for  damages  for  withholding,  and  also,  in  the  for- 
mer case,  a  claim  for  mesne  profits,  is,  in  all  cases,  compatible 
with  a  claim  for  the  recovery  of  the  property  itself;  and  a 
prayer  to  this  effect  should  always,  as  a  general  rule,  be  sub- 
joined to  the  main  relief  demanded.  In  fact,  every  species  of 
relief  which  is  or  may  be  required,  should  be  asked  for  specific- 
ally and  in  terms;  and,  in  no  case,  should  the  usual  concluding 
clause,  praying  "for  such  further  or  other  relief  as  the  court 
may  direct,"  be  omitted  on  any  account.  This  last  demand 
should  not,  however,  be  overweeningly  relied  on.  See  Marquat 
v.  Marqua%  7  How.  417.  It  is  most  essential,  nay,  vital,  with 
reference  to  matters  subsidiary  to  the  main  demand  of  the 
plaintiff;  but,  in  respect  of  those  which  embrace  any  thing  in 
the  nature  of  a  separate  and  independent  claim,  it  may,  in  most 
cases,  be  ineffectual,  standing  alone,  and  without  any  specific 
demand  whatever. 

The  pleader  must,  however,  take  special  care  that,  in  praying 
relief,  he  does  not  ask  for  any  that  is  inconsistent.  Thus,  in 
Linden  v.  Hepburn,  3  Sandf.  668,  5  How.  188,  9  L.  0.  80,  3  C. 
R.  165,  where  the  plaintiff  sought  to  enforce  a  forfeiture,  and 
also  to  obtain  equitable  relief,  in  respect  of  the  same  transaction, 
it  was  held  that  he  could  not  ask  for  both  conjointly,  but  must 
make  his  election  between  the  two  species  of  remedy. 

See,  also,  as  to  alternative  relief  of  an  inconsistent  nature, 
the  cases  cited  at  the  outset  of  this  chapter,  in  reference  to 
sec.  167. 

Where,  however,  the  plaintiff  is  entitled  to  both  legal  and 
equitable  relief  under  the  facts  averred,  and  such  relief  is  not 
inconsistent  in  its  several  parts,  he  may  obtain  it  by  means  of 


420  COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

the  same  proceeding,  and  it  should  be  prayed  for  accordingly. 
Linden  v.  Hepburn,  above  cited;  Getty  v.  The  Hudson  River 
Railroad  Company,  6  How.  269,  10  L.  O.  85. 

It  would  seem  from  the  case  of  Beale  v.  Hayes,  5  Sandf.  640 ; 
10  L.  0.  166,  that' the  claim  of  judgment  for  a  larger  amount 
than,  by  the  plaintiff's  own  showing,  he  is  entitled  to  recover, 
will  not  constitute  a  demurrable  defect.  Of  course  the  error  is 
one  that,  though  not  fatal,  it  will  always  be  expedient  to  avoid. 

§  135.  Service,  and  other  Formalities. 

Service.]  —  The  general  requisites  of  complaint,  separately 
considered,  having  thus  been  gone  through,  it  remains  to  notice 
the  proceedings  necessary  for  its  due  completion  and  service. 
This  branch  of  the  subject  has,  however,  in  a  great  measure, 
been  anticipated,  in  the  chapter  as  to  the  formal  requisites  of 
pleading.  The  manner  in  which  the  complaint,  when  prepared, 
must  be  copied,  subscribed,  and  verified,  is  there  fully  pre- 
scribed; anditwould.be  superfluous  to  enter  a  second  time 
upon  the  same  details.  The  only  remark  necessary  is,  that  the 
strictest  compliance  with  the  directions  there  given,  is  virtually 
essential.  The  new  Kale,  No.  87,  that  distinct  causes  of  action 
should  not  only  be  separately  stated,  but  plainly  ^umbered, 
should  also  be  carefully  attended  to. 

The  complaint  having  been  perfected,  a  copy  of  it  must  be 
served  upon  the  opposite  party,  either  personally,  as  annexed  to 
the  summons,  or  on  him  or  his  attorney  afterwards,  if  he  give 
regular  notice  of  appearance,  and  demand  a  copy.  The  mode 
of  service,  in  this  latter  case,  differs  in  no  respect  from  that  of 
ordinary  papers  in  the  suit,  and  will  be  found  prescribed  in  the 
chapter  devoted  to  the  consideration  of  those  subjects.  The 
proceedings  to  be  taken  by  the  defendant  for  that  purpose,  the 
time  within  which  the  copy  so  demanded  by  him  must  be  served, 
and  i  m-  consequences  to  the  plaintiff  if  he  omit  to  do  so,  will  be 
found  (nil.  detailed  in  the  succeeding  chapter.  The  questions 
as  to  where  it  may,  or  may  not,  be  expedient  to  serve  a  copy  of 
the  complaint  in  company  with  thu  summons,  have  also  been 
before  enlarged  upon,  in  the  chapter  devoted  to  the  considera- 
tion of  that  proceeding.  As  a  general  rule,  it,  will  be  advisable 
in  all  cases,  for  the  obvious  reason,  that  an  omission  to  do  so 
will  enable  the  defendant,  as  of  course,  to  obtain  additional 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  421 

time  to  answer.  Where,  however,  the  defendants  are  numer- 
ous, and  are  likely  to  appear  in  classes,  and  more  than  one  by 
the  same  attorney,  service  of  the  summons  alone  will  usually 
be  the  more  convenient  course;  and,  when  the  service  is  by 
publication,  that  is  the  only  advisable  mode. 

Where  a  copy  of  the  complaint  is  demanded,  the  plaintiff 
must  serve  it  within  due  time,  or  the  defendants'  attorney  will 
not  be  bound  to  accept  it,  and  will  be  entitled  to  move  to  dis- 
miss. Baker  v.  Curtis,  7  How.  478 ;  Mandeville  v.  Winne,  5  How. 
461 ;  ICE.  (N.  S.)  161 ;  there  cited.  The  name  of  the  court 
should,  on  no  account,  be  omitted.  Yates  v.  Bhdgett,  8  How. 
278.  The  fixing  the  venue,  where  the  action  is  brought  in  the 
Supreme  Court,  is  also  of  equal  importance.     See  supra. 

In  cases  where  service  by  mail  is  admissible,  the  plaintiff  will, 
of  course,  be  entitled  to  serve  his  complaint  in  that  manner, 
after  demand  made,  but  within  twenty,  not  forty  days,  unless 
the  demand  itself  be  served  by  mail.  In  that  case,  the  forty 
days  would  probably  be  held  allowable,  though,  until  the  mat- 
ter be  settled  by  judicial  decision  on  the  actual  point,  it  would 
perhaps  be  unsafe,  and  certainly  inexpedient,  unless  under  pecu- 
liar circumstances,  to  risk  the  chance.  The  general  principle 
has,  however,  been  laid  down  as  above  with  reference  to  a 
notice  of*appeal,  in  Dorian  v.  Lewis,  7  How.  132,  where  it  is 
held  that,  when  the  service  by  one  party  has  the  effect  of  set- 
ting time  to  run  as  against  the  other,  the  time  allowed  shall  be 
governed  by  the  mode  of  the  original  service.  Of  course, 
where  an  early  answer  is  an  object,  it  will  be  inexpedient  to 
serve  the  complaint  in  this  manner.  See  this  subject  here- 
after considered  with  reference  to  the  time  allowed  to  answer. 

In  Travis  v.  Tobias,  7  How.  90,  it  was  considered  that,  in 
actions  founded  on  contract,  though  several  defendants  be  named 
in  the  summons,  the  plaintiff,  on  demand  by  one  of  them,  may 
deliver  to  the  latter  a  copy,  with  his  name  only  inserted  as 
defendant,  omitting  the  others.  This  view  seems  very  ques- 
tionable, and  the  case  is  certainly  one  that  ought  not  to  be 
followed  as  a  precedent,  when  a  few  additional  words  will  re- 
move all  question  on  the  subject. 

Filing.'] — As  before  noticed,  the  filing  of  the  complaint  is,  at 
one  time  or  other,  essential.  In  strictness  it  ought,  in  all  cases, 
to  be  filed  within  ten  days  after  service;  Code,  sec.  416 ;  and 


422      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

this  was  held  to  be  obligatory  in  Toomey  v.  /Shields,  9  L.  0.  66. 
In  practice,  however,  the  complaint  is  seldom,  if  ever,  filed 
before  the  entry  of  judgment ;  nor  does  it  seem  necessary  to  do 
so,  unless  upon  order  obtained  by  the  adverse  parties,  under 
the  same  section,  (416.)  The  terms  of  the  section  itself  clearly 
show,  that  an  omission  to  file  the  complaint  before  the  service 
of  such  an  order,  will  not  be  a  serious,  or  even  an  impeachable 
irregularity.  Such  an  order  once  obtained,  however,  the  filing 
then  becomes  imperative,  and  an  omission  to  comply  with  the 
direction  will,  as  a  general  rule,  be  fatal  ;  although,  where  the 
omission  is  unintentional  and  explained,  the  court  may  allow  it 
to  be  rectified.  See  Short  v.  May,  2  Sandf.  639.  The  mere  filing 
will  be  a  sufficient  compliance  with  the  order,  and  it  will  not 
be  necessary  to  serve  the  opposite  parties  with  notice  of  that 
compliance.  Douoy  v.  Hoyt,  1  C.  E.  (1ST.  S.)  286.  In  practice, 
however,  this  is  generally  done,  and  ought  to  be  done,  as  a  mat- 
ter of  fairness  and  courtesy. 

Where  service  takes  place  by  publication,  it  is,  however,  ne- 
cessary that  the  complaint  should  be  filed  at  once,  and  before 
the  issuing  of  the  summons,  or  the  proceeding  will  be  irregular. 
In  real  actions,  also,  it  is  now  necessary,  under  the  recent 
amendment  of  sec.  132,  that  the  complaint  should  be  filed  at 
the  outset  of  the  suit,  inasmuch  as,  until  that  is  the  case,  the 
notice  of  pendency  of  action  cannot  be  placed  on  record.  Under 
the  Code  of  1849,  this  was  otherwise,  and  it  was  there  provided 
that  the  notice  in  question  might  be  given  at  "the  time  of  com- 
mencing the  action,"  without  reference  to  the  complaint  being 
or  not  being  previously  filed. 


§    136.     Collateral  Proceedings. 

The  mention  of  the  above  subject  naturally  introduces  the 
concluding  topic  of  this  chapter,  i.  e.,  the  collateral  proceedings 
advisable  to  be  taken  by  the  plaintiff,  in  certain  cases,  in  con- 
ruction  with,  and  al  the  lime  of  the  preparation  and  service  of 
hia  first  pleading.  These  proceedings  are  two-fold;  the  first  of 
them  being  the  notice  of  the  object,  and  the  second,  the  notice 
of  the  pendi  '■>■■;:  of  the  action. 

Notice  of  Object  of  Action.']  -Tin:  following  is  the  section  of 
the  ('ode  in  !  ■  to  the  former: 


COMPLAINT,  AND  COLLATERAL  PROCEEDINGS.  423 

§  131.  In  the  case  of  a  defendant  against  whom  no  personal  claim 
is  made,  the  plaintiff  may  deliver  to  such  defendant,  with  the  summons, 
a  notice,  subscribed  by  the  plaintiff  or  his  attorney,  setting  forth  the  gen- 
eral object  of  the  action,  a  brief  description  of  the  property  affected  by 
it,  if  it  affects  specific  real  or  personal  property,  and  that  no  personal 
claim  is  made  against  such  defendant;  in  which  case  no  copy  of  the 
complaint  need  be  served  on  such  defendant,  unless,  within  the  time  for 
answering,  he  shall,  in  writing,  demand  the  same.  If  a  defendant,  on 
whom  such  notice  is  served,  unreasonably  defend  the  action,  he  shall 
pay  costs  to  the  plaintiff. 

Under  the  Code  of  1849,  this  proceeding  was  confined  exclu- 
sively to  actions  for  partition  and  foreclosure,  and  was  not  ad- 
missible in  any  others.  This  defect  is  now  removed,  and, 
therefore,  under  any  circumstances  whatever,  a  notice  of  this 
sort  may  now  be  served  upon  mere  formal  defendants.  The 
plaintiff  must,  however,  be  careful  not  to  do  so  with  respect  to 
any  party  against  whom  substantial  relief  is  sought.  See  this 
subject  already  considered,  under  the  head  of  Summons.  For 
form,  see  Appendix. 

Notice  of  Lis  Pendens.'] — The  second  proceeding  above  alluded 
to,  is  the  notice  of  pendency  of  action,  commonly  called  notice 
of  lis  pendens,  which,  in  all  real  estate  cases,  is  admissible,  and, 
in  the  case  of  foreclosure,  indispensable. 

The  provisions  of  section  132,  on  this  subject,  are  as  follows  : 

§  132.  In  an  action  affecting  the  title  to  real  property,  the  plaintiff, 
at  the  time  of  filing  the  complaint,  or  at  any  time  afterwards,  may  file 
with  the  clerk  of  each  county  in  which  the  property  is  situated,  a  no- 
tice of  the  pendency  of  the  action,  containing  the  names  of  the  parties, 
the  object  of  the  action,  and  a  description  of  the  property  in  that 
county  affected  thereby  ;  and,  if  the  action  be  for  the  foreclosure  of  a 
mortgage,  such  notice  must  be  filed  twenty  days  before  judgment,  and 
must  contain  the  date  of  the  mortgage,  the  parties  thereto,  and  the 
time  and  place  of  recording  the  same.  From  the  time  of  filing  only, 
shall  the  pendency  of  the  action  be  constructive  notice  to  a  purchaser 
or  encumbrancer  of  the  property  affected  thereby. 

It  will  be  seen,  then,  that  this  proceeding  is  admissible  at  any 
stage  of  the  suit,  after  the  complaint  is  filed.  In  practice,  how- 
ever, it  is  universally  taken  at  the  commencement.  The  advan- 
tages of  this  course  are  obvious,  in  every  case,  and  under  all 
circumstances;  and  that,  not  merely  as  regards  the  county  where 


424      COMPLAINT,  AND  COLLATERAL  PROCEEDINGS. 

the  action  is  brought,  but  every  county  in  which  there  are  any 
lands  which  can  be  affected  by  it,  in  case  the  property  be  scat- 
tered. No  prudent  practitioner  will  neglect  taking  this  precau- 
tion, or  will  neglect  taking  it  at  the  outset.  By  doing  so,  he 
places  a  stop  upon  the  property,  and  prevents  it  from  being 
subsequently  dealt  with,  in  prejudice  of  his  client's  rights.  By 
omitting  to  do  so,  he  leaves  those  rights  still  liable  to  be  de- 
feated by  subsequent  acts,  notwithstanding  the  steps  taken  in 
the  suit  for  their  actual  assertion. 

In  Oriswold  v.  Miller,  15  Barb.  520,  it  is  held  that  actual  no- 
tice to  a  purchaser,  of  the  pendency  of  a  proceeding  affecting 
the  property  purchased,  arrests  all  further  proceedings,  and,  if 
the  purchase  is  persisted  in,  it  will  be  held  to  be  fraudulent. 
The  conveyance  in  that  case  was  set  aside,  the  purchaser  being 
aware,  at  the  time  he  bought,  that  proceedings  were  then  actually 
pending  against  the  vendor,  as  an  habitual  drunkard.  It  is  true 
that,  in  that  case,  no  notice  of  the  above  nature  had  been  filed, 
or  was  relied  on,  but  the  doctrine  laid  down  bears  directly  on 
the  subject  now  under  consideration. 

In  foreclosure,  the  filing  of  such  a  notice,  at  least  twenty  days 
before  judgment  is  rendered,  is,  as  will  be  seen,  a  condition 
precedent  to  obtaining  the  relief  demanded.  See  also  Rule  46 
of  the  Supreme  Court,  and  Brandon  v.  McCami,  1  C.  R.  38.  In- 
asmuch as  a  full  description  of  the  suit  in  general,  and  particu- 
larly of  the  property  alfected,  is  a  necessary  incident  to  the 
validity  of  a  notice  of  this  description,  it  seems  to  follow,  as  a 
necessary  consequence,  that,  if  the  plaintiff,  after  filing  his  notice, 
subsequently  amend  his  complaint  in  substantial  matter,  either 
as  regards  the  parties  to  the  action,  the  premises  affected,  or 
the  relief  claimed,  a  new  notice  should  be  filed,  in  accordance 
with  the  fresh  matter  pleaded  ;  and  such  is  the  general  practice. 

In  Learned  v.  VanderibUrgh,  7  How.  379,  where  lands  had 

been   seized    under  an    attachment,   it  was  considered  by   the 

'.  that,  in  order  to  make  that  attachment  effectual,  as  against 

bond  fide  purchasers  and  encumbrancers,  a  notice  of  this  de- 

Bcription  v.: i    accessary  to  be  filed. 

Form.'  of  thifl  proceeding  are  given  in  the  Appendix. 

The  due  filing  of  the  notice  may  be  proved,  either  by  affida- 
vit, or  liy  tl"  certificate  of  the  countj  cleri  with  whom  it  is 
liled.  In  all  cases,  then  tore,  a  duplicate  copy  should  be  kept, 
on  which  that  certificate  may  be  endorsed,  or  which  maybe 
annexed  to  the  required  affidavit,  where  that  form  is  adopted. 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  425 


CHAPTER    II. 

OF  THE  DEFENDANT'S  COURSE  OF  ACTION,  ON  BEING  SERVED 
WITH  PROCESS. 


The  present  chapter  will  be  devoted  to  the  consideration  of 
the  different  proceedings,  which  may,  or  which  must  be  taken 
by  the  defendant,  on  being  served  with  process,  including,  in 
the  last  place,  the  time  allowed  to  him  for  the  purpose  of 
pleading  in  the  action. 

§  137.    Defects  in  Summons. 

In  the  first  instance,  the  summons  itself  should  be  carefully 
examined,  to  see  whether  it  be  or  be  not  in  any  manner  defect- 
ive; and,  if  so,  the  objection  on  that  ground  must  be  taken  at 
once.  The  proper  proceeding  for  this  purpose  is  a  motion. 
See  Nones  v.  The  Hope  Mutual  Insurance  Company,  8  Barb.  541 ; 
5.  How.  96;  3  C.  R.  161;  and  that  motion  must  be  made  at 
once,  and,  where  the  summons  and  complaint  are  served  to- 
gether, without  any  previous  notice  of  appearance.  If  such 
notice  be  given,  the  defendant,  by  taking  that  course,  will  have 
admitted  himself  to  be  regularly  in  court,  and,  having  done  so, 
all  defects  in  the  summons,  or  its  service,  or  even  the  want  of 
any  summons  at  all,  will  then  become  immaterial.  Dix  v. 
Palmer,  5  How.  233 ;  3  C.  R.  214;.  Flynn  v.  The  Hudson  River 
Railroad  Company,  6  How.  308 ;  10  L.  0.  158 ;  Webb  v.  Mott,  6 
How.  439;  Voorhies  v.  Scqfield,  7  How.  51;  Hewitt  v.  Howell,  8 
How.  346. 

Where,  however,  the  summons  is  served  without  the  com- 
plaint, and  is  defective,  by  reason  of  being  founded  on  the 
wrong  subdivision  of  sec.  129,  so  as  to  mislead  the  defendant 
as  to  the  nature  of  the  relief  demanded  against  him,  it  seems 
this  rule  will  not  hold  good ;  and  the  defendant  may  move,  on 
a  defect  first  made  apparent  to  him,  on  service  of  the  com- 


426  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

plaint,      Voorhies  v.  Scofteld,  7  How.  51.     See,  also,  Field  v. 
Morse,  7  How.  12. 

The  different  points  in  which  summons  may  be  defective, 
have  already  been  enlarged  upon,  in  the  chapter  devoted  to  its 
consideration.  The  question  as  to  how  far  the  sheriff's  return 
of  service  will  or  will  not  be  deemed  conclusive,  has  been  also 
there  considered.  See  Van  Rensselaer  v.  Chadivick,  7  How.  297, 
there  cited,  where  a  motion,  on  the  ground  that  the  summons 
had  been  served  on  a  wrong  party,  was  sustained. 


§  138.   Notice  of  Appearance — Demand  of  Copy 
Complaint. 

After  any  preliminary  objections  to  the  summons  itself  shall 
have  been  thus  disposed  of,  the  next  point  to  be  attended  to,  is 
the  giving  due  notice  of  appearance  by  the  defendant's  attorney. 
This  is  a  most  essential  precaution,  and  should  be  looked  to  at 
once,  as  it  may  often  be  highly  advisable,  even  when  a  defence 
to  the  action  is  not  contemplated.  If  omitted,  the  defendant 
will  not  be  entitled  to  further  notice  in  the  suit,  whilst,  if  he 
appear  in  due  form,  he  must  be  served  with  such  notice,  in  all 
cases,  and  particularly  with  reference  to  the  entry  of  judgment 
under  sec.  247.  It  will  thus  be  in  his  power  to  supervise  the 
plaintiff's  subsequent  proceedings,  with  reference  to  the  amount 
of  his  demand,  or  otherwise. 

hi  White  v.  Featherstonhaugh,  7  How.  357,  it  was  held  that 
such  notice  must  be  served,  before  the  time  for  answering  ex- 
pires, or  the  plaintiff  will  not  be  bound  to  delay  entering  judg- 
ment by  default,  for  the  purpose  of  giving  notice  of  assessment. 
In  Abbott  v.  Smith,  however,  8  How.  463,  this  conclusion  is 
denied,  and  it  is  held  that  such  a  notice  will  be  effectual,  if 
served  before  judgment  entered,  in  all  cases  where  an  assess- 
ment of  damage  is  necessary.  The  latter  view  seems  undoubt- 
edly preferable. 

A  defendant,  who  has  not  been  served,  is  not  entitled  to  give 
a  notice  of  tin-  description.     Tracy  v.  Reynolds,  7  How.  327. 

Avoliini.ii,  of  the  complaint  by  the  plaintiff,  not 

accompanying  the  summons,  but  subsequently,  in  connection 

with  other  proceedings,  will,  it  seems,  be  of  no  operation  in 

ending  the  defendant's  time  to  answer,  or  preventing  the 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  427 

plaintiff  from  entering  up  judgment,  at  the  expiration  of  twenty 
days  from  the  original  service.     Van  Pelt  v.  Boyer,  7  How.  325. 

An  appearance,  without  answer,  does  not  however  entitle  the 
defendant  to  notice  of  an  application  for  an  injunction.  That 
application  is  not  an  "  ordinary  proceeding  in  the  cause."  Becker 
v.  Hager,  8  How.  68. 

Of  course,  if  any  objection  exists  to  the  summons,  or  on  the 
ground  of  deficient  service,  the  defendant's  attorney  must  not 
give  notice  of  appearance,  till  the  question  shall  have  been  de- 
cided. See  last  section,  and  cases  there  cited.  If,  pending  the 
motion  for  that  purpose,  the  time  for  answering  should  be 
drawing  out,  he  may  apply  for  a  stay  of  all  proceedings  until 
the  decision  of  the  motion,  and  some  reasonable  time  after,  but 
without  prejudice  to  the  questions  raised  upon  the  motion. 
Such  an  order  as  this,  would  probably  be  held  not  to  be  a  re- 
cognition of  the  validity  of  the  plaintiff's  proceedings. 

Even  when  a  copy  of  complaint  has  been  served  with  the 
summons,  the  sooner  notice  of  appearance  is  given,  the  better. 
No  particular  form  is  required  for  such  notice,  but  it  should  be 
in  writing,  and  served  on  the  plaintiff's  attorney.  (See  Rule  7 
of  the  Supreme  Court.)  Where,  however,  the  summons  has 
been  served  alone,  the  notice  should  be  accompanied  by  the 
demand  of  a  copy  of  the  complaint,  and,  in  these  cases,  the 
immediate  service  may,  or  may  not,  be  a  matter  of  expediency. 
Where  delay  is  not  an  object,  of  course  the  defendant  will  be 
anxious  to  gain  an  insight  into  his  adversary's  case,  as  soon  as 
possible :  but,  where  he  wishes,  on  the  contrary,  to  gain  time, 
he  may,  under  sec.  130,  delay  further  proceedings  on  the  part  of 
the  plaintiff,  for  twenty  days,  by  serving  the  notice  on  the  last 
day  allowed  for  that  purpose. 

The  demand  as  above,  must,  under  the  special  provisions  of 
sec.  130,  be  in  writing,  and  must  specify  a  place  in  the  State 
where  that  copy  may  be  served.  It  may  be  made  either  in 
person  or  by  attorney,  though,  if  an  attorney  have  been  em- 
ployed in  the  action,  the  latter  will  be  the  proper  person  to 
make  it  in  all  cases ;  and  the  party  making  it  will,  of  course, 
take  care  to  name  his  real  place  of  residence  or  business,  in 
order  to  insure  the  direct  service  upon  him  of  all  subsequent 
notices  or  papers  in  the  suit.  (See  Eule  5  of  the  Supreme 
Court,  and  sec.  417  of  the  Code.)  For  form  of  notice  and  de- 
mand, see  Appendix. 


428  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

Under  the  Code  of  1849,  this  proceeding  could  only  be  taken 
within  ten  da}rs  after  service  of  the  summons.  If  not  demanded 
within  that  time,  the  plaintiff  was  not  bound  to  serve  a  copy  of 
his  complaint  afterwards,  unless  by  special  order  of  the  court, 
Bennett  v.  Dellicker,  3  0.  R.  117 ;  in  which  case,  an  order,  deny- 
ing a  copy  of  the  complaint  under  such  circumstances,  was  sus- 
tained. As  a  general  rule,  however,  the  courts  were  disposed 
to  grant  an  application  for  that  purpose,  but,  of  course,  upon 
proper  terms.  See  the  same  case,  and  also  Engs  v.  Overing,  2 
C.  E.  79. 

In  both  these  cases  a  strong  bias  was  shown  by  the  court  in 
favor  of  the  plaintiff's  filing  his  complaint  at  once,  in  all  cases 
where  a  copy  is  not  served. 

In  Toomey  v.  Shields,  9  L.  0.  66,  it  was  even  held  that  he  was 
obliged  to  do  so,  within  the  time  allowed  to  the  defendant  to 
answer,  and  a  judgment  obtained  in  the  usual  mode  was  ac- 
tually set  aside,  on  the  ground  that  this  had  been  omitted.  It 
seems  clear,  however,  that  the  conclusion  in  this  last  case  is 
erroneous.  The  Code  contains  no  provision  whatever  to  war- 
rant it. 

Under  the  recent  amendment,  these  questions  are  no  longer 
likely  to  arise,  the  defendant's  power  to  demand  a  copy  of  the 
complaint  being  now  extended  to  twenty  days,  the  full  period 
allowed  him  to  answer. 

Under  the  Code  of  1849,  no  period  was  limited,  within  which 
the  copy  of  the  complaint  so  demanded  was  to  be  served,  and 
there  was,  in  consequence,  a  great  division  of  opinion  among 
the  judges  upon  the  subject.  In  Littl'fidd  v.  Murin,  4z  How. 
306,  2  C.  11.  128,  twenty-four  hours  was  considered  a  reasonable 
time;  and,  in  Walrath  v.  Julia;  2  C.  E.  129,  similar  views  are 
enounced.  Forty-nine  days  were  clearly  held  to  be  an  unrea- 
sonable time  in  Echs  v.  Debeand,  2  C.  R.  114.  In  Colvin  v. 
Bragden,  6  How.  121;  3  C.  E.  188,  and  Munson  v.  Wlllard,  5 
How.  2*'..';.  :;  0.  R.  250,  twenty  days  was  fixed  upon  as  a  proper 
period,  in  analogy  with  the  lime  given  to  answer  or  reply;  and 
it  will  be  seen  that  this  last  period  has  been  adopted  by  the 
lature,  and  is  now  the  rule  for  the  future. 
In  case  the  plaintiff  complies  with  the  demand,  and  serves 
the  copy,  the  defendant's  time  to  answer  runs  from  the  date  of 
that  service,  without  regard  t"  the  original  service  of  the  sum- 
mons.   It  is  clearly,  therefore,  the  plaintiff's  interest  to  do  so, 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.       429 

as   speedily  as  possible.      An   attorney,   representing  several 
defendants,  is  entitled  to  only  one  copy.     See  sec.  130. 


§  139.    Motion   to  Dismiss. 

For  want  of  Service,  as  above.'] — The  service  of  this  copy 
within  the  time  demanded,  is  absolutely  obligatory  under  the 
present  measure,  the  term  "must"  being  employed,  instead  of 
"shall,"  the  term  used  in  the  Code  of  1849.  The  defendant's 
attorney  will  not  be  bound  to  accept  service  of  a  copy,  served 
after  the  time  has  elapsed.  Mandeville  v.  Winne,  5  How.  461 ;  1 
C.  K.  (N.  S.)  161.  He  is  entitled  to  give  his  notice  of  motion 
to  dismiss,  immediately  the  plaintiff  is  in  default  in  this  respect; 
and,  if  the  copy  be  served  after  that  notice,  the  not  returning 
it  immediately  will  not  be  considered  as  a  waiver  of  the  objec- 
tion. Baker  v.  Curtiss,  7  How.  478.  If,  however,  the  complaint 
had  been  served  before  such  notice,  and  had  been  either  re- 
tained or  returned  by  the  defendant's  attorney,  without  giving 
notice  of  the  objection  to  receive  it,  it  was  considered,  in  the 
same  case,  that  the  doctrine  of  waiver  might  have  been  applied. 
A  defendant  not  served  with  process  will  not  be  entitled  to 
appear  voluntarily,  nor  can  he,  by  such  an  appearance,  entitle 
himself  to  make  a  motion  of  this  description.  Tracy  v.  Reynolds, 
7  How.  327. 

Although,  under  the  previous  Code,  no  definite  time  was  fixed 
in  relation  to  the  service,  under  these  circumstances,  a  similar 
rule  to  that  now  prescribed  with  reference  to  the  defendant's 
right  to  move  for  a  dismissal,  had  been  laid  down  in  the  cases  of 
Littlefield  v.  Marin,  Walrath  v.  Killer,  Ecles  v.  Debeand,  Colvin  v. 
Bragden,  and  Munson  v.  Willard,  above  noticed. 

In  the  cases  last  alluded  to,  a  "  locus  pcenitentice"  was  given  to 
the  plaintiff.  Under  the  present  measure  that  privilege  can  no 
longer  be  depended  upon,  and,  therefore,  special  care  should  be 
taken  by  the  plaintiff  to  complete  and  serve  his  complaint  within 
the  twenty  days,  in  all  cases.  If  he  cannot  do  so,  he  should, 
on  no  account,  omit  to  apply  to  the  court  for  an  order  extending 
the  time  allowed,  and  this  application  should  be  made  before 
the  time  in  question  has  expired.  If  this  precaution  be  neglected, 
the  order  cannot  afterwards  be  obtained  ex  parte,  or,  if  obtained, 
will  be  set  aside.     Stephens  v.  Moore,  4  Sandf.  674. 


430  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

Of  course,  in  reference  to  the  different  periods  of  time  above 
referred  to,  and  elsewhere  throughout  the  work,  the  nature  and 
incidents  of  service  by  mail,  where  admissible,  and  the  effect  of 
that  service  in  doubling  the  ordinary  periods  allowed,  must  not 
be  lost  sight  of. 

The  form  of  a  notice  of  motion  for  the  above  purpose,  will 
be  found  in  the  Appendix  of  Forms.  It  should  be  supported  by 
an  affidavit  of  service  of  the  demand,  and  of  the  non-receipt  of 
the  copy  demanded,  within  the  twenty  days  now  allowed.  This 
form  of  motion  is  proper  in  such  cases,  and  falls  within  the 
powers  of  the  court,  as  conferred  by  sec.  274.  Baker  v.  Curtiss, 
above  cited. 

The  motion  for  this  purpose  must  be  made,  in  the  district,  or 
in  a  county  adjoining  that  in  which  the  summons  states  the 
complaint  will  be  filed.  That  county  will  be  presumed  to  be 
the  county  of  venue.  Johnston  v.  Bryan,  5  How.  355  ;  1  C.  R. 
(N.  S.)  46. 

On  other  Grounds.'] — In  Elliott  v.  Hart,  7  How.  25,  it  was  con- 
sidered that  the  proper  course  to  pursue  in  relation  to  the  mis- 
nomer of  defendants,  was  to  move  to  set  aside  the  summons 
and  complaint.  The  application  will  be  in  the  nature  of  the  for- 
mer plea  in  abatement.     See  Gardiner  v.  Clark,  6  How.  449. 

A  motion  of  this  description  will  be  proper,  in  relation  to  an 
action  in  the  nature  of  the  former  creditors'  bill,  where  the 
amount  of  the  plaintiff's  claim  is  less  than  the  $100  prescribed 
by  statute.     Shepard  v.  Walker,  7  How.  46. 

§  110.  Defendant's  Course,  on  Service  of  Complaint. 

The  following  observations  are  of  course  appropriate,  ab  ini- 
tuj,  to  those  cases  in  which  the  summons  and  complaint  are 
served  together.  The  last  head  of  the  last  section  is  also,  in 
strictness,  more  appropriate  to  the  present,  although,  for  the 
Bake  of  per  pieuity,  it,  was  thought  better  to  cite  the  two  cases 
there  referred  to,  id  connection  with  the  subject  of  a  motion  to 
dismiss,  l>v  the  defendant,  at  the  outset  of  the  cause. 

Examination  of  Complaint,  Motions  for  structural  Defect*.] — On 
the  copy  complaint  being  seised,  it,  should,  at  once,  be  examined 
with  care,  to  Bee  whether  any  inherent  delects  exist  in  its  struc- 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  43 1 

ture,  which  may  be  made  the  subject  of  a  motion  under  sec.  160. 
The  nature  of  the  different  defects  on  the  score  of  irrelevancy 
or  redundancy,  impeachable  by  this  mode  of  proceeding,  and 
the  course  to  be  adopted  for  that  purpose,  have  been  already 
fully  detailed,  in  the  introductory  chapter  on  the  correction  of 
pleadings.  The  same  remark  applies  to  the  subject  of  motions 
to  compel  the  plaintiff  to  render  his  pleading  more  definite  and 
certain,  under  the  powers  of  the  same  section.  Of  a  like  nature 
are  the  recent  amendments  in  section  122,  in  relation  to  the 
powers  now  given,  of  interpleader,  and  substitution  of  one  party 
for  another,  also  fully  considered  under  the  head  of  Parties. 

Demand  of  Particulars.'] — Although  the  complaint  be  perfect 
in  its  form,  it  may,  in  certain  cases,  be  deficient  in  the  necessary 
information  for  the  defendant's  guidance,  in  cases  where  an 
account  is  alleged,  and  the  plaintiff  avails  himself  of  the  per- 
mission conferred  by  section  158,  and  omits  to  state  the  items 
of  it.  In  this  case,  the  defendant  should  forthwith  demand  a 
copy  of  such  account,  under  the  powers  of  that  section.  For 
the  form  of  demand,  which  must  be  in  writing,  and  served  in 
due  form,  see  Appendix.  In  West  v.  Brewster,  1  Duer,  617  ; 
11  L.  0.  157,  it  was  held  that,  where  the  particulars  required 
by  the  defendant  are  within  his  own  personal  knowledge,  as  in 
that  case,  where  the  plaintiff's  action  was  for  an  account  of  mo- 
neys collected  by  defendant  himself,  as  attorney  of  the  plaintiff, 
the  latter  will  not  be  bound  to  furnish  a  bill  of  particulars, 
unless  under  special  order. 

If  the  complaint  be  verified,  the  copy  account  or  bill  of  par- 
ticulars furnished  by  the  plaintiff  must  be  verified  also ;  (see 
same  section  :)  and,  if  this  be  omitted  by  the  plaintiff,  the  de- 
fendant should  give  immediate  notice  of  the  defect  to  the 
plaintiff's  attorney,  and  return  the  defective  paper.  See  Laim- 
beer  v.  Allen,  and  other  cases  previously  cited  with  reference  to 
the  return  of  defective  papers,  in  the  introductory  chapter,  as 
to  the  formal  requisites  of  pleading. 

If  the  plaintiff  omit,  in  such  case,  to  serve  a  properly  verified 
C0Pyi  or  if  the  copy  regularly  served,  be  deficient  in  the  neces- 
sary information,  the  defendant  should  apply,  in  the  usual 
manner,  for  an  order,  requiring  the  plaintiff  to  render  a  further 
and  more  definite  account.  See  same  section.  The  case  of 
Wiggins  v.  Gaus,  3  Sandf.  738,  1  C.  E.  (N.  S.)  117,  though  not 


432  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

directly  in  point,  will  afford  an  indication  as  to  what  the  court 
will  consider  as  clearly  an  insufficient  compliance  with  such  a 
demand.  If  the  plaintiff  omit  to  comply  with  the  demand  at 
all,  and  the  exclusion  of  evidence  of  the  account  be  not  suffi- 
cient for  the  defendant's  purpose,  he  should  then  apply  to  the 
court  for  a  special  order  upon  the  subject,  under  the  last  clause 
of  the  section  above  referred  to ;  which  order  would  doubtless 
be  made,  as  of  course,  on  proof  of  the  demand,  and  of  the 
plaintiff's  non-compliance,  and  it  would  be  wise  to  make  a 
general  stay  of  proceedings  a  part  of  the  order  so  asked  for. 

In  Yates  v.  Bigelow,  9  How.  186,  it  was  held  that  a  further 
account  of  this  nature  may  be  enforced  by  motion,  after  all  the 
pleadings  have  been  put  in,  its  chief  object  being  to  enable  the 
defendant  to  prepare  for  the  trial. 

The  Code  of  1849  was  defective,  in  confining  the  defendant's 
right,  in  such  respects,  to  cases  in  which  an  account  was  alleged 
in  the  complaint.  The  recent  amendment  cures  this  defect,  and 
the  defendant  may  now,  in  all  cases,  apply  to  the  court,  that 
the  plaintiff  may  be  ordered  to  furnish  a  bill  of  particulars. 
Whenever,  therefore,  the  statement  of  the  plaintiff's  case  is  too 
general,  and  the  details  require  to  be  given,  in  order  to  enable 
the  defendant  to  meet  that  case  in  a  proper  manner,  he  should 
apply  forthwith  for  an  order  of  this  description,  which  may  be 
obtained  ex  parte,  and  without  any  further  evidence  than  that 
afforded  by  the  pleading  itself;  and,  if  the  plaintiff  meet  this 
requisition  evasively,  a  second  order,  for  a  farther  and  more 
particular  bill,  should  be  obtained.  The  plaintiff  possesses 
similar  rights  as  against  the  defendant,  in  cases  where  a  set-off 
is  claimed  by  the  latter. 

In  case  of  non-compliance  with  these  provisions,  and  espe- 
cially with  those  in  relation  to  the  verification  of  the  bill  so 
delivered,  the  plaintiff  will  be  precluded  from  giving  evidence 
of  the  account  omitted  to  be  furnished.  One  point,  in  relation 
to  this  remedy,  seems  to  have  been  left  unprovided  i'or  in  the 
rules  <>f  tip'  court,  Mini  thai  is,  with  reference  to  delay,  on  the 
part  of  the  plaintiff,  in  furnishing  the  bill  so  required.  By 
analogy  with  the  provisions  of  Rule  LI,  in  relation  to  the  dis- 
covery of  books  and  papers,  an  order  for  furnishing  a  bill  of 
particulars  ought  to  operate  as  a  stay  of  proceedings,  and  as 
an  extrusion  of  the  time,  to  answer,  until  such  order  shall  have 
been  complied  with   or  vacated.     The  reasons  for  the  one  ap- 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  433 

pear  to  be  equally  forcible  with  respect  to  the  other,  but  no  ex- 
press provision  seems  to  have  been  made  upon  the  subject.  In 
the  event,  therefore,  of  any  delay  or  evasiveness,  on  the  part 
of  the  plaintiff,  in  complying  with  the  demand,  the  defendant 
should  apply  for  an  order  staying  all  proceedings,  and  extend- 
ing the  time  to  answer,  until  after  due  compliance  on  the  part 
of  the  plaintiff.  This  order  would,  doubtless,  be  considered  as 
of  course,  on  the  facts  being  made  apparent. 

Discovery,  &c.~] — The  next  point  to  be  considered  is,  as  to 
whether  the  inspection  of  any  books,  papers  or  documents,  in 
the  possession  or  under  the  control  of  the  plaintiff,  is  necessary 
or  advisable,  on  the  part  of  the  defendant,  for  the  purpose  of 
enabling  him  to  prepare  his  answer,  in  the  action.  If  so,  he 
possesses,  under  sec.  388  of  the  Code,  the  power  of  enforcing 
that  inspection,  and  obtaining  a  copy,  or  permission  to  take  a 
copy  of  the  documents  inspected,  by  means  of  an  order  of 
the  court,  which  order,  as  before  remarked,  stays  all  pro- 
ceedings, and  extends  the  time  to  answer  until  it  is  either  com- 
plied with  or  vacated.  The  measures  for  this  purpose,  and  the 
cases  on  the  subject,  will  be  found  fully  treated  of  hereafter,  in 
connection  with  the  proceedings  between  issue  and  trial. 

Of  a  similar  nature  are  the  powers  conferred  by  the  chapter 
of  the  Code  in  reference  to  the  examination  of  parties,  c.  VI. 
of  title  XII.  of  part  II.,  and  particularly  by  sec.  391,  in  that 
chapter.  In  Chichester  v.  Livingston,  3  Sandf.  718,  1  C.  R.  (N. 
S.)  108,  doubts  were  entertained  as  to  whether  this  proceeding 
could  be  taken  before  issue  joined,  unless  upon  leave  specially 
obtained  from  the  court.  This  opinion  is,  however,  expressed  very 
doubtfully,  and  with  an  express  reservation,  that  cases  might 
arise,  where  the  ends  of  justice  required  such  examination,  be- 
fore answer  or  reply;  and  Miller  v.  Mather,  2  C.  R.  101,  is  direct 
authority  to  the  contrary.  It  was  there  held  that  "such  exami- 
nation being  provided  by  the  Code  as  a  substitute  for  the  for- 
mer bill  of  discovery,  is  governed  by  the  rules  applicable  to 
such  bills ;  and  a  discovery,  by  bill  of  discovery,  might  be  had 
at  any  time  during  the  progress  of  the  suit."  The  latter  view 
seems  the  correct  one.  Under  sec.  391,  the  examination  may 
be  had  "  at  any  time  before  the  trial,  at  the  option  of  the  party 
claiming  it;"  and  all  that  is  there  prescribed,  is  a  previous 
notice  to  the  party  to  be  examined,  and  any  other  adverse  party, 
28 


434  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

of  at  least  five  days,  unless  by  special  order  of  the  court. 
There  is  nothing  in  this  section,  or  in  any  other  part  of  the 
chapter  above  referred  to,  to  qualify  the  above  provision ;  and 
therefore,  it  appears  to  be  clear,  that,  in  cases  where  an  exami- 
nation of  the  plaintiff  is  absolutely  essential  for  the  purposes  of 
the  defence,  that  examination  may  be  had  in  this  manner,  be- 
fore answer  put  in,  and  for  the  purposes  of  that  answer.  Of 
course,  this  proceeding  will  not  be  taken  without  due  delibera- 
tion, because  the  chapter  in  question  appears  to  contain  no  pro- 
vision enabling  the  defendant  to  repeat  such  examination,  when 
once  had.  At  the  actual  trial,  however,  the  adverse  party  may? 
it  would  seem,  be  called  as  a  witness,  in  all  cases;  though,  if  so 
called,  his  previous  examination  cannot  then  be  used.  The 
proceedings  in  relation  to  the  above  measure,  on  the  part  of 
the  defendant,  will  also  be  found  fully  considered,  and  the 
cases  cited  in  detail,  in  connection  with  the  proceedings  be- 
tween issue  and  trial. 


§  141.    Precautionary  Proceedings  of  Defendant  on  his 

own  behalf 

The  above  precautionary  measures  have  reference  to  the  eli- 
citing of  information  from  the  adverse  party,  with  a  view  to 
the  due  preparation  of  the  defensive  pleading.  The  following 
relate  to  precautions  on  the  part  of  the  defendant  himself. 

Tender.] — In  cases  where  a  tender  was  admissible  under  the 

old  practice,  that  tender  may  still  be  made.     The  law  on  this 

subject  is,  however,  in  no  manner  affected  by  the  Code ;  and, 

irdingly,  the  plan  adopted  at  the  outset  of  the  work,  forbids 

any  lengthened  consideration  as  to  its  details.     The  statutory 

pro\  i.  i' mi-,  on  the  subject  will  be  found  at  2  .R  S.  553,  and  all 

other  necessary  information  maybe  obtained  from  the  old  books 

of  practice. 

The  following  recent  cases,  in  relation  u>  what  will  or  will  not 

Lstitute  a  sufficient  tender,  and  the  circumstances  attendant 

thereon,  may  be  advantageously  looked  to;  viz:  Wilderv.  Seeh/e, 

I  Barb,  fc08;   Hull  v.  Peters,  7  Barb.  831,  3  0.  li.  255;  Holmes 

v.  Holiru  ,  L2  Barb.  L37,  affirmed  by  the  Court  of  Appeals,.  18th 

April,  L854.  A  tender,  t<>  he  of  any  effect,  must  be  complete  in 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  435 

all  its  parts,  and,  to  be  available  as  a  defence,  it  must  be  fully 
and  specifically  pleaded,  or  it  will  be  of  no  effect.  Thus,  in  The 
People  v.  Banker,  8  How.  258,  a  tender,  made  after  suit  brought, 
in  which  the  costs  up  to  that  time  were  not  included,  was  held 
to  be  fatally  defective;  and,  in  Brevoort  v.  Randolph,  7  How. 
398,  a  tender  of  his  principal  and  interest  to  a  mortgagee  in  the 
city  of  New  York,  without  including  an  assessment  paid  by 
him,  and  interest  on  that  assessment,  was  held  to  be  unavailing 
to  extinguish  his  lien. 

The  old  practice  of  paying  money  into  court  seems  also  to 
be  still  admissible,  in  cases  where  that  course  may  be  thought 
advisable,  though,  in  most  instances,  an  offer  under  the  pro- 
vision next  commented  upon  would  answer  the  same  purpose. 

Offer  to  compromised] — The  Code  provides  an  analogous  re- 
medy to  the  above,  by  section  385,  under  which  the  defendant 
is  empowered  to  make  an  offer  to  compromise  the  cause,  with- 
out prejudice,  if  refused.     That  section  runs  as  follows: 

§  385.  The  defendant  may,  at  any  time  before  the  trial  or  verdict, 
serve  upon  the  plaintiff  an  offer  in  writing,  to  allow  judgment  to  be 
taken  against  him,  for  the  sum  or  property,  or  to  the  effect  therein 
specified,  with  costs.  If  the  plaintiff  accept  the  offer,  and  give  notice 
thereof  in  writing  within  ten  days,  he  may  file  the  summons,  complaint 
and  offer,  with  an  affidavit  of  notice  of  acceptance,  and  the  clerk  must,, 
thereupon,  enter  judgment  accordingly.  If  the  notice  of  acceptance 
be  not  given,  the  offer  is  to  be  deemed  withdrawn,  and  cannot  be  given 
in  evidence  ;  and,  if  the  plaintiff  fail  to  obtain  a  more  favorable  judg- 
ment, he  cannot  recover  costs,  but  must  pay  the  defendant's  costs,  from 
the  time  of  the  offer. 

It  is  obvious  that,  wherever  admissible,  i.  e.,  in  all  cases 
where  the  defendant  cannot  dispute  the  correctness  of  a  part 
of  the  plaintiff's  demand,  but  contests  it  as  to  the  residue,  this 
course  is  highly  expedient  to  be  pursued,  both  in  respect  to  its 
bearing  on  the  eventual  costs  of  the  suit,  and  also  as  regards 
the  possibility  of  its  bringing  about  a  compromise  on  some  other 
terms,  even  if  those  actually  tendered  by  the  offer  be  not 
accepted.  Under  the  Code  of  1849,  this  remedy  was  confined 
to  actions  "arising  on  contract,"  but,  by  the  recent  amendments,, 
the  defendant's  right  to  do  so  is  extended  to  all  cases  whatso- 
ever, of  every  nature.      It  is  therefore  probable  that,  for  the 


436  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

future,  this  provision  will  be  more  extensively  acted  upon  in 
practice  than  heretofore.  In  actions  for  damages,  where  an 
injury  has  really  been  committed,  and  the  defendant  is  ready  to 
pay  a  moderate  sum,  but  not  the  amount  demanded,  and  there 
is  a  fair  probability  that  a  jury  might  be  found  to  concur  in  his 
estimate  of  the  actual  compensation  due,  it  might  be  a  most 
advantageous  course,  especially  as,  if  not  accepted,  it  in  nowise 
prejudices  the  ulterior  prosecution  of  his  defence;  and  many 
other  instances  might  be  given. 

The  signature  of  the  defendant's  attorney  to  an  offer  as 
above,  is  sufficient,  as  being  equivalent  to  the  signature  of  the 
defendant  himself.  Sterne  v.  Bentley,  1  C.  R.  109;  3  How.  331. 
It  is  not  necessary  that  the  offer  should  contain  any  special 
statement  on  the  subject  of  costs.  The  allowance  of  them 
follows,  as  of  course,  if  it  be  accepted.  Megraih  v.  Van  Wyck, 
3  Sandf.  750,  1  C.  R.  (N.  S.)  157.  In  an  action  against  defend- 
ants jointly  liable,  an  offer  by  one  defendant,  the  other  making 
no  defence,  will  subject  the  plaintiff  to  costs,  if  he  fail  to  recover 
more  than  the  sum  mentioned.  Laforge  v.  Chilson,  3  Sandf. 
752,  1  C.  R.  (1ST.  S.)  159.  See,  also,  case  of  Lippman  v.  Jbekon, 
to  same  effect,  cited  in  note,  1  C.  R.  (N.  S.)  161-  The  above 
cases  proceed  upon  the  ground  that  it  is  competent  to  the  plain- 
tiff to  enter  judgment  against  both  parties,  as  joint  debtors, 
under  the  offer  so  made.  In  Olwell  v.  McLaugJdin,  10  L.  0. 
310,  it  was  held  that  an  offer  made  by  one  partner  in  a  firm 
will  bind  their  joint  property.  See,  likewise,  Emery  v.  Emery, 
9  How.  130. 

Although  the  defendant,  on  a  verdict  being  given  for  less 
than  the  offer,  is  entitled  to  his  costs,  he  cannot  recover  an 
extra  allowance,  under  sees.  308  and  309.  McLees  v.  Avery,  4 
J  low.  411,  3  C.  R.  104.  The  ordinary  costs,  however,  will,  in 
all  cases,  be  quite  a  sufficient  inducement  to  the  adoption  of 
this  course,  wherever  admissible. 

Tl:<-  :idv:nit.agcs  of  this  course  bring  pursued,  wherever 
admissible,  are  demonstrated  by  the  case  of  Smith,  v.  Olssen,  4 
Sandf.  711,  when:  an  application  for  the  defendant  to  satisfy 
an  admitted  portion  of  the  plaintiff's  olaim,  under  see.  244,  was 
refused,  on  the  ground  that  q  previous  offer,  to  the  same  effect, 
had  been  made,  and  refused  bv  the  plaintiff. 

An  offer  of  this  description  precludes  the  defendant  from 
taking  any  steps  in  the  cause,  until  the  ten  days  allowed  to  the 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  437 

plaintiff  have  expired,  or  his  written  acceptance  or  refusal  of  it 
be  received.  The  election  to  be  made  by  the  latter  must  be  made 
in  writing;  evidence  of  one  made  by  parol,  will  not  avail  the 
defendant,  or  render  any  proceedings  regular,  which  he  may 
take  within  the  period  in  question.  Walker  v.  Johnson,  8  How. 
240  ;  Pomeroyy.  Hulvn,  7  How.  161. 

Nor  can  the  defendant,  by  taking  this  course,  deprive  the 
plaintiff  of  his  right  to  proceed.  He  must  make  the  offer  at 
such  a  time  that  the  plaintiff  may  also  have  the  full  benefit  of 
his  clection^and  if  it  is  served  too  late,  so  that  the  cause  can  be 
reached  and  tried  within  the  ten  clays,  the  rights  of  the  parties 
are  in  all  respects  as  if  no  offer  had  been  made.  Pomeroy  v. 
Hulin,  above  cited. 

The  virtual  result  of  the  cause,  and  not  the  actual  amount 
recovered  by  the  plaintiff,  will  govern  the  question  as  to  the 
defendant's  right  to  costs.  Thus,  in  Rvggles  v.  Fogg,  7  How, 
324,  where  the  plaintiff  failed  to  recover  a  more  favorable  judg- 
ment in  amount  than  that  offered  by  defendant,  but,  on  the 
trial,  extinguished  a  counter-claim  which,  with  the  verdict, 
exceeded  the  defendant's  offer,  it  was  held  that  he  was  entitled 
to  full  costs. 

Where,  however,  the  verdict  is  in  any  measure  less  than  the 
sum  offered,  with  subsequent  interest  to  the  date  of  trial,  the 
reverse  will  be  the  case,  and  the  defendant  entitled  to  the  bene- 
fit of  the  proceeding.  The  acceptance  of  the  offer,  and  entry  of 
judgment  thereon,  extinguish  the  counter-claim.  Schneider  v. 
Jacobi,  1  Duer,  694;  11  L.  O.  220. 

In  relation  to  an  offer  to  take  judgment,  entitling  the  plaintiff 
to  the  performance  of  a  specific  act,  and  the  mode  in  which  that 
performance  may  be  enforced,  see  Fero  v.  Van  Evra,  9  How- 
ard, 148. 

With  reference  to  compromise  in  general,  the  enabling  pro- 
visions of  c.  257,  of  the  Laws  of  1838,  as  amended  by  c.  348,  of 
those  of  1845,  see  vol.  II.  of  third  edition  of  the  Eevised  Statutes, 
p.  61,  with  reference  to  compromises  or  compositions,  effected 
by  one  out  of  several  partners  or  joint  debtors,  should  not  be 
lost  sight  of,  where  a  defendant,  desirous  of  compromising, 
stands  in  either  of  those  positions.  To  enter  into  any  detailed  con^ 
sideration  of  the  subject  would,  as  before  stated,  be  inconsistent 
with  the  plan  of  this  work,  it  being,  strictly  speaking,  a  remedy 
under  the  old  practice.  Assuming  such  a  compromise  to  be  effected 


438  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

during  the  progress  of  the  suit,  and  before  judgment,  by  one  of 
several  defendants,  desirous  of  getting  rid  of  his  individual  lia- 
bility, a  consent  to  dismiss  the  action,  as  against  him,  should  be 
obtained  from  the  plaintiff's  solicitor,  as  part  of  the  arrange- 
ment, and  a  judgment  of  dismissal,  without  costs,  entered  there- 
upon. If  that  consent  be  refused,  the  proper  course  will  then 
be  to  plead  the  memorandum  to  be  taken  under  the  statute,  or, 
if  issue  be  already  joined,  to  apply  to  the  court  for  leave  to  file 
a  supplemental  answer  for  that  purpose,  and  then  apply  to  the 
court  for  judgment  thereon,  by  motion,  or  order  to  show  cause, 
in  the  ordinary  form. 

§  142.    Defendant's  Proceedings  with  reference  to 
Plaintiff. 

The  questions  as  to  the  eliciting  of  necessary  information,  and 
also  as  to  the  precautionary  proceedings  of  the  defendant,  in 
relation  to  the  defence  to  be  put  in,  and  the  incidental  subject 
of  compromise,  having  thus  been  treated  of;  the  next  point  to 
be  noticed  is  that  as  to  certain  precautionary  proceedings,  which 
such  defendant  is  at  liberty  to  take,  with  reference  to  the  fur- 
ther prosecution  of  the  suit  by  the  plaintiff. 

Security  for  Costs.'] — The  first  of  these  is  the  defendant's 
power  to  require  security  for  costs,  in  certain  cases. 

This  is  a  matter  in  which  the  old  system  still  subsists,  without 
alteration  by  the  Code ;  and  the  old  books  of  practice  should, 
accordingly,  be  referred  to.  The  statutory  provisions  on  the 
subject  are  contained  in  title  II.,  chapter  X.,  part  III.  of  the 
Revised  Statutes,  2  R  S.  620.  The  instances  in  which  the  de- 
lant  is  thereby  entitled  to  this  security,  are  as  follows: 

1.  Who,  the  suit  is  commenced  on  behalf  of  a  plaintiff,  not 
residing  within  the  jurisdiction  of  the  court,  or  on  behalf  of 

al  plaintifls,  who  are  all  non-residents. 

2.  When  it  is  commenced  for,  or  in  the  name  of  the  trustees 
of  any  debtor. 

.",.  Winn  it  is  commenced  for,  or  in  the  name  of  any  person 
being  insolvent,  who  shall  have  been  discharged  from  his  debts, 
<>r  whose  person  shall  have  }>rcu  exonerated  from  imprison- 
ment pursuant  to  any  law,  and  that,  for  tin'  collection  of  any 
debt  contracted  before  the  assignment  of  his  estate. 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  439 

4.  When  it  is  commenced  for,  or  in  the  name  of,  any  person 
committed  in  execution  for  any  crime ;  or, 

5.  When  it  is  commenced  for,  or  in  the  name  of,  any  infant, 
whose  next  friend  has  not  given  security  for  costs. 

If,  too,  after  the  commencement  of  the  suit,  the  plaintiff,  or 
plaintiffs,  shall  subsequently  become  classifiable  under  Nos.  1, 
3,  or  4  of  the  above  provisions,  the  defendant  may  likewise  re- 
quire such  security. 

In  addition  to  the  provisions  above  noticed,  there  is  also  a 
special  power  contained  in  sec.  317  of  the  Code,  empowering 
the  court  to  require  the  plaintiff  to  give  security  for  costs,  in 
actions  prosecuted  or  defended  by  executors,  or  other  parties 
standing  in  a  fiduciary  relation. 

The  security  to  be  so  given,  is  to  be  in  the  form  of  a  surety- 
bond,  in  at  least  $250;  the  sureties  to  justify,  if  excepted  to: 
and  the  mode  of  compelling  the  plaintiff  to  give  it,  is  by  appli- 
cation to  the  court,  upon  affidavit,  for  an  order  to  the  effect  that 
the  plaintiff  give  such  security  within  twenty  days,  or  show 
cause,  at  a  period  named  in  the  order,  why  such  security  should 
not  be  given,  with  an  interim  stay  of  proceedings. 

In  cases  of  the  above  nature,  the  plaintiff's  attorney  is  tem- 
porarily liable  for  costs,  to  an  amount  not  exceeding  $100,  until 
security  shall  have  been  given ;  and  this,  whether  it  have  been 
required  by  the  defendant  or  not ;  but  such  attorney  may  dis- 
charge himself  from  that  liability,  by  filing  security  of  his  own 
motion,  giving  notice  thereof  to  the  defendant.  The  mere  ob- 
taining of  an  order  by  the  defendant,  does  not  discharge  the 
attorney  from  such  liability,  in  case  the  security  required  be 
not  perfected,  even  though  the  defendant  proceed,  without  wait- 
ing the  result.  The  demand  of  such  costs  does  not,  however, 
entitle  the  defendant  to  process  against  the  attorney  in  the  first 
instance.  That  process  can  only  be  founded  on  a  demand  after 
the  order  is  made,  and  after  service  of  a  certified  copy,  and  is 
not  obtainable  until  the  expiration  of  the  twenty  days  allowed 
by  Rule  35  for  that  purpose.  Boyce  v.  Bates,  8  How.  495.  In  the 
proceedings  for  this  purpose,  the  original  right  to  require  secu- 
rity, must  be  affirmatively  shown.   Moir  v.  Brown,  9  How.  270. 

In  Gardner  v.  Kelly,  2  Sandf.  632,  1  C.  E.  120,  it  was  con- 
tended, in  opposition  to  a  motion  for  this  purpose,  that  the 
above  provisions  were  repealed  by  sec.  303  of  the  Code.  The 
court  held,  however,  that  such  was  not  the  case,  that  those  pro- 


440  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

visions  were  still  subsisting,  and  that  the  defendant  was  accord- 
ingly entitled  to  such  security  under  them. 

In  Abbott  v.  Smith,  8  How.  463,  it  was  held  that  a  motion  for 
this  purpose  is  sustainable,  after  default  suffered,  but  before 
judgment  entered.  In  Gardner  v.  Kelly,  above  cited,  this 
species  of  relief  was  even  granted,  after  judgment  by  default 
against  the  defendant  had  been  actually  entered,  on  leave  being 
subsequently  given  to  him  to  answer.  "  If,  however,"  the 
learned  judge  said,  "the  plaintiff  had  required  that  restriction 
to  be  imposed  upon  the  defendant,  when  he  applied  for  leave 
to  open  his  default,  it  would  probably  have  been  granted." 

It  is  not,  however,  imperative  to  grant  the  application,  if  un- 
reasonably delayed.  Thus,  in  Florence  v.  Bulkley,  1  Duer,  705, 
12  L.  0.  28,  where  the  application,  as  against  an  infant,  was  not 
made  till  after  the  cause  had  been  referred  and  noticed  for  trial, 
the  attorney  and  guardian  being  both  responsible,  the  applica- 
tion was  refused.  In  the  same  case  it  was  laid  down  that,  if  the 
plaintiff  is  permitted  to  sue  in  forma  pauperis,  he  cannot  be 
required  to  give  security  for  costs,  nor  can  he  be  permitted  to 
sue  in  that  character,  on  application  made  after  he  has  been 
required  to  file  such  security. 

If  the  defendant,  having  obtained  such  an  order,  afterwards 
proceed  in  the  cause  before  it  is  complied  with,  it  will  effect  a 
waiver  of  the  stay  of  proceedings,  and  the  plaintiff  will  be  at 
liberty  to  appear  and  prosecute  the  cause.  The  defendant's 
claim  against  the  attorney  will  not,  however,  be  prejudiced  by 
his  adopting  this  course.  Boyce  v.  Bates,  8  How.  495,  above 
cited. 

The  order  to  file  security  for  costs  should  be  in  the  alterna- 
tive, according  to  the  old  practice.  When  the  plaintiff  gives 
security,  with  justification,  in  the  first  instance,  and  the  defend- 
ant excepts,  the  justification  must  be  repeated,  and  until  that  is 
done,  time  will  not  commence  to  run  as  against  the  defendant. 
/.'  v.  Freemant  8  How.  492. 

A  non-resident  administratrix,  though  prosecuting  in  the 
right  of  t!ii-  i  ,  is  bound  to  give  Beeurity,  if  required,  for 

such  costs,  [f  any,  as  may  be  awarded  against  her,  lide  bonis 
pro}>rii.<y     Murphy  v.  Darlington^  I  C.  I>.  86. 

Tin  power  "I'  requiring  security  from  an  executor,  adminis- 
trator, or  trustee,  under  Bee.  817,  is,  however,  strictly  discre- 
tionary.   It  will  not  be  required,  merely  upon  the  ground  that 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  441 

the  estate  he  represents  is  insolvent.  Darby  v.  Condit,  1  Duer, 
599,  11  L.  O.  154. 

The  bond  as  security  for  costs  need  not  follow  the  exact 
words  of  the  statute.  It  will  be  a  sufficient  compliance  with  it, 
if  it  be  equally  favorable  to  the  defendant,  and  if  the  spirit  of 
the  statute  is  carried  out  by  it.  Smith  v.  Norval,  2  Sandf.  653, 
2  C.  E.  14. 

Where  the  plaintiff  is  non-resident,  the  defendant's  right  to 
require  security  subsists,  notwithstanding  that  the  former  may 
have  subsequently  assigned  the  alleged  cause  of  action  to  a 
resident,  so  that  the  latter  has,  in  fact,  become  the  real  party  in 
interest.  The  plaintiff  on  the  record  cannot,  by  his  own  act, 
divest  himself  of  his  liability  to  the  defendant  for  costs.  Phe- 
nix  v.  Townshend,  2  0.  E.  2  ;  see  also  note,  2  Sandf.  634. 

A  plaintiff  resident  at  Brooklyn,  must  give  security  for  costs 
in  proceedings  in  the  Superior  Court.  Blossom  v.  Adams,  2  C. 
E.  59;  7  L.  0.  314.  The  same  point  is  decided  in  Ahsbahs  v. 
Cousin,  2  Sandf.  632. 

An  infant  joint  plaintiff  cannot  be  required  to  give  security 
for  costs,  nor  is  the  attorney  liable,  under  the  Revised  Statutes, 
in  such  case,  or  in  others  where  defendant  cannot  require  such 
security.     Hulbert  v.  Newell,  4  How.  93. 

It  would  seem  that,  in  cases  pending  in  courts  of  limited  ju- 
risdiction, the  security  must  be  given  by  some  person  residing 
within  the  jurisdiction  of  the  court.  See  Merrick  v.  Taylor,  1 
C.  R,  (N.  S.)  382,  (note.) 

Where  security  has  been  filed  pursuant  to  an  order,  and 
twenty  daj-s  have  elapsed  without  objection  as  to  the  amount 
of  the  bond,  the  court  will  not  entertain  an  application  to  in- 
crease the  amount.     Castellanos  v.  Jones,  4  Sandf.  679. 

Change  of  Venue — Demand  of  Trial  in  proper  County.] — With 
reference  to  the  forum  in  which  the  cause  is  to  be  tried,  the  de- 
fendant possesses,  under  sec.  33,  the  power  of  removing  any 
transitory  action  from  the  New  York  Superior  Court,  or  Court 
of  Common  Pleas,  into  the  Supreme  Court,  as  before  noticed  in 
the  introductory  chapters  as  to  the  jurisdiction  of  those  tribu- 
nals. The  application  is  to  be  made  to  the  Supreme  Court, 
upon  motion  ;  and,  on  the  order  being  obtained,  a  certified  copy 
is  to  be  filed  in  the  office  of  the  clerk  of  the  court  from  which 
the  action  is  removed.  On  filing  of  such  copy,  the  cause  is  to 
be  deemed  as  removed,  and  all  process  and  proceedings  on  file 


442  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

are  to  be  forthwith  delivered  to  the  clerk  of  the  county  in  which 
the  trial  is  ordered  to  be  had.  In  certain  cases,  also,  the  de- 
fendant possesses  the  power  of  removing  the  case  into  the 
United  States'  courts.  See  introductory  remarks  on  the  subject. 
See,  also,  Field  v.  Blair,  1  C.  R.  (K  S.)  292,  361 ;  Suydam  v. 
Swing,  Id.  294. 

When,  too,  the  county  designated  by  the  plaintiff  in  his  com- 
plaint, is  not  the  proper  county,  it  is  in  the  power  of  the  defend- 
ant to  obtain  a  change,  under  the  provisions  of  sec.  126.  This 
proceeding  must  not  be  confounded  with  the  ordinary  motion 
to  change  the  venue  on  grounds  of  convenience,  the  proper  time 
for  making  which  is  after  issue,  and  which  will  accordingly  be 
treated  of  hereafter,  at  that  point  in  the  progress  of  the  cause. 

The  proceeding  for  the  former  purpose  is  prescribed  by  the 
above  section,  and  consists  of  a  demand,  in  writing,  that  the 
trial  be  had  in  the  proper  county.  This  demand  must  be  made 
before  the  time  for  answering  expires ;  and  the  consent  of  the 
opposite  party,  or  the  order  of  the  court  for  such  removal,  must 
be  thereupon  obtained.  If  these  proceedings  be  not  taken  on 
the  part  of  the  defendant,  the  case  may  still  be  tried  by  the 
plaintiff  in  the  county  originally  named,  though  not  the  proper 
one. 

Under  the  Code  of  1819,  this  section  did  not  in  terms  pre- 
scribe that  the  demand  of  a  change  should  be  followed  up  by 
an  order  for  that  purpose,  but  it  was,  nevertheless,  held  in  Has- 
brouck  v.  McAdam,  4  How.  812,  3  C.  R  39,  that,  under  that 
measure,  a  bare  demand  in  writing  was  not  sufficient,  unless 
followed  up  by  an  application  to  the  court  by  one  part}r  or  the 
other,  and  that  cither  party  might  make  it;  and  it  was  likewise 
laid  down  that  if,  after  receiving  such  notice,  the  plaintiff  neg- 
lected or  refused  to  take  the  necessary  measures,  the  defend- 
ant rnighl  avail  himself  of  such  omission  on  the  trial,  by  appli- 
cation  for  the  dismissal  of  the  complaint.  See  also  Moore  v. 
Gardner,  5  Eow  243;  3  C.  R.  224;  and  Main  v.  Remsen,  3  C. 
|,\  L88;  Vermont  Central  Railroad  Company  v.  The  Northern 
Railroad  Company,  Q  Eow.  106.  The  cecent  amendments  of 
the  Code  pul  thii  beyond  a  doubt,  and  the  defendant's  course 
is  clear  under  it.  viz.,  to  apply  to  the  plaintiff's  attorney  for  a 
consent  founded  on  his  demand,  al  the  time  of  making  it,  and, 
if  such  consent  be  refused,  then  to  apply  to  ihc  court  himself 
for  that  purpose.  The  necessary  forms  will  be  found  in  the 
Appendix. 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  443 

The  demand  should  be  in  the  terms  of  the  act,  i.  e.,  "  that 
the  trial  should  be  had"  in  the  "  proper  county  ;"  if  these  words 
be  omitted,  and  a  county  simply  named,  it  would  seem  that  the 
demand  would  not  be  good.  Beardsley  v.  Dickerson,  4  How.  81. 
If  one  county  be  named  in  the  demand,  a  motion  to  change  the 
venue  into  another  cannot  be  grounded  upon  it,  but  a  fresh 
demand  must  be  made.  Vermont  Central  Railroad  Company  v. 
The  Northern  Railroad  Company,  6  How.  106. 

The  proper  county  in  actions  falling  within  sections  123  and 
124,  i.  e.,  real  estate  or  local  actions,  is  the  county  in  which  the 
premises  affected,  or  some  part  thereof,  are  situate,  or,  as  regards 
the  latter,  in  that  in  which  the  cause  of  action  arose.  See  also 
Miller  v.  Hull,  3  How.  325 ;  ICE.  113,  with  reference  to  the 
proper  county  in  foreclosure  cases ;  and  likewise  Beardsley  v. 
Dickerson,  4  How.  81. 

An  action  for  specific  performance  of  a  contract  is  not,  how- 
ever, a  local  action,  and  maybe  tried  in  another  count}r,  or  even 
in  a  court  of  limited  jurisdiction  elsewhere,  as,  for  instance,  in 
the  Superior  Court,  provided  the  jurisdiction  of  such  court  be 
otherwise  completely  acquired.  See  Auckincloss  v.  Nott,  12  L. 
0.  119. 

In  actions  of  a  strictly  local  nature,  the  demand  that  the  trial 
be  had  in  the  proper  county  is  as  of  right,  and  cannot  be  resisted 
on  general  grounds.     See  Parkv.Carnley,  7  How.  355. 

Where  the  action  is  not  of  a  local  nature,  any  county  in 
which  one  at  least  of  the  parties  resides,  is  a  proper  county. 
See  Hinchman  v.  Butler,  7  How.  462. 

In  actions  brought  by  the  People,  any  county  in  the  State 
may  be  the  proper  county.  People  v.  Cook,  6  How.  448.  An 
action  brought  against  a  public  officer,  for  an  act  done  by  him 
by  virtue  of  his  office,  ought,  however,  to  be  tried  in  the  county 
where  the  cause  of  action  arose.  See  Code,  sec.  124,  subd.  2  ; 
The  People  v.  Hayes,  7  How.  248. 

In  Goodrich  v.  Vanderbilt,  7  How.  467,  it  is  laid  down  as  a 
general,  though  not  an  imperative  rule,  that  the  place  of  trial, 
in  a  transitory  action,  should  be  in  the  county  where  the  prin- 
cipal transactions  between  the  parties  occurred  ;  and  the  incon- 
venience of  a  trial  in  New  York  itself,  was  obviated,  by  grant- 
ing an  election  to  the  parties,  to  substitute  some  neighboring 
county  in  its  stead. 

The  above  provisions  do  not,  in  any  way,  restrict  the  power 


444  DEFENDANT'S  COUKSE,  BEFORE  ANSWER. 

of  the  court  to  grant  a  change  of  venue  on  other  grounds,  on  a 
proper  application  for  that  purpose.  Nor  is  the  power  of  the 
opposite  party  to  make  such  an  application  in  clue  time,  impaired 
by  his  having  previously  complied  with  a  demand  to  change 
the  venue  into  the  proper  county,  under  the  above  provision. 
See  Moore  v.  Gardner,  5  How.  243 ;  3  C.  E.  224.  The  same 
case  is  authority  that,  on  applications  on  the  foregoing  ground, 
the  venue  is  to  be  fixed  irrespective  of  the  convenience  of  wit- 
nesses, but  subject,  of  course,  to  the  power  of  the  court  to  change 
it  subsequently  on  that  ground,  as  above  alluded  to. 

In  Mason  v.  Brown,  6  How.  481,  this  last  conclusion  is  doubt- 
ed, on  the  ground  that,  where  it  is  manifestly  shown  that  the 
convenience  of  witnesses  will  eventually  require  the  trial  in 
another,  it  would  be  an  idle  ceremony  to  transfer  the  venue  to 
the  proper  county  in  the  first  instance.  This  case  was,  however, 
one  of  conflicting  motions,  and  is  altogether  "  sui  generis"  and 
characterized  as  such  in  Park  v.  Camley,  7  How.  355,  where  it 
is  laid  down  that,  in  actions  of  a  local  nature,  the  demand  is  of 
right,  and  the  change  a  matter  of  course.  The  parties  must 
first  be  put  right,  after  which,  either  has  the  privilege,  at  the 
proper  time,  of  coming  in  and  being  heard,  on  the  ground  of 
the  convenience  of  witnesses.  It  is  indeed  admitted  in  Mason 
v.  Brown,  that  if  the  motion  to  change  the  venue  into  the  pro- 
per county  had  been  made  before  issue  joined,  which  is  clearly 
the  proper  time  for  making  it,  it  must  have  been  granted.  The 
difficulty  there  arose  from  the  defendant's  delay,  which  gave  the 
plaintiff  an  opportunity  of  making  a  counter  motion,  and  bring- 
ing in  counter  evidence,  which  would  otherwise  have  been  inad- 
missible. 

The  demand  of  a  change  into  the  proper  county,  and  the  ap- 
plication thereon,  may  be  made  by  one  of  several  defendants. 
The  consent  of  the  others  should,  however,  be  obtained,  or 
notice  of  the  application  given  to  them.  Hairs  v.  Remsen,  3 
C.  R.  LS8. 

The  defendant  must  be  careful  to  make  his  demand  in  due 
time,  or  hia  right  to  do  so  will  be  gone,  and  he  may  also  waive 
that  right,  by  acta  inconsistent  with  its  assertion. 

Thus,  where  a  defendant  had  served  his  answer  before  the 
expiration  of  the  time  allowed,  and  afterwards,  within  that 
time,  demanded  a  change  of  venue  under  this  section,  it  was 
held  that  the  application  was  made  too  late.  Milligan  v.Brophy, 
2C.  B.  1.18. 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  445 

Such  demand  may,  however,  be  made  simultaneously  with 
the  putting  in  of  the  answer.  Mairs  v.  Remsen,  3  C.  K.  138, 
above  cited. 

It  seems  that,  in  all  motions  to  change  the  place  of  trial,  costs 
to  abide  the  event  will  be  allowed,  if  they  are  asked  for  in  the 
notice,  but,  if  not,  the  court  has  no  power  to  make  such  order. 
Northrop  v.  Van  Dusen,  5  How.  134,  3  C.  E.  140.  The  power 
of  the  court  to  give  costs  of  this  description  under  any  circum- 
stances, has  however  been  doubted.  See  Johnson  v.  Jillitt,  7 
How.  485. 

See  hereafter  under  the  head  of  Costs. 

Under  the  Code  of  1849,  it  was  held  that  an  order,  changing 
the  place  of  trial,  as  regarded  the  issue  of  fact,  did  not  change 
the  venue  for  other  purposes.  See  Gould  v.  C hatpin,  4  How. 
186,  2  C.  R.  107  ;  Barnard  v.  Wheeler,  3  How.  71 ;  Beardsley  v. 
Dickerson,  4  How.  81 ;  Lynch  v.  Mosher,  4  How.  86,  2  C.  R.  54. 
But  a  change  of  trial  into  the  proper  county,  always  carried  the 
venue  with  it,  for  all  purposes.  See  Rule  3  of  the  Supreme 
Court  on  that  subject.  The  question  is  now,  however,  put  be- 
yond doubt,  in  all  cases,  by  the  recent  amendment. 

For  further  considerations  on  the  subject  of  the  change  of 
venue,  see  subsequent  chapter,  where  the  subject  is  generally 
considered,  in  reference  to  motions  made  for  that  purpose,  on 
general  grounds,  and  after  issue  joined. 


§  143.     Proceedings  preliminary  to  Answer. 

Appointment  of  Guardian,  next  Friend,  <£c] — The  following 
precautions  apply  to  particular  cases: 

Where  an  infant  is  defendant,  the  first  proceeding  to  be 
taken  is  the  appointment  of  a  guardian  ad  litem.  Until  this  is 
done,  no  answer  can  properly  be  put  in,  or  act  properly  done  in 
the  suit,  on  behalf  of  such  infant.  See  previous  chapter,  in  re- 
lation to  the  proceedings  necessary  for  that  purpose. 

Of  a  like  nature  is  the  case  of  a  wife  defendant.  As  a  ge- 
neral rule,  she  can  only  prosecute  or  defend  by  her  next  friend, 
and  her  husband,  where  their  interests  are  not  adverse,  should 
be  joined  with  her  as  a  party.  See  this  subject  heretofore  con- 
sidered, and  numerous  cases  cited  under  the  head  of  Parties,  in 
section  29,  subdivision  " husband  and  wife"     In  an  anonymous 


446  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

case,  reported  11  L.  0.  350,  it  was  held  that,  where  a  wife  de- 
fendant had  commenced  a  cross  action  against  her  husband,  she 
could  not  require  him  to  furnish  money  for  the  prosecution  of 
that  action;  on  the  ground  that  she  might  have  obtained  the 
same  relief  by  her  answer,  properly  interposed. 

In  certain  cases,  however,  1.  Where  the  husband's  interest 
is  adverse  to  hers ;  2.  Where  he  is  a  defendant  in  her  right,  and 
she  disapproves  of  the  intended  defence ;  3.  Where  she  lives 
separate  from  him;  or,  1.  Where  he  is  out  of  the  jurisdiction,  or 
an  alien  anemy ;  the  wife  may  answer  separately,  as  under  the 
old  practice.  See  also  as  to  real  estate  actions,  2  R.  S.  310, 
sees.  1  and  5.  In  all  these  cases,  however,  the  leave  of  the 
court  to  enable  her  to  answer  separately,  must  first  be  obtained. 
See  Newcomb  v.  Ketdtas,  2  C.  R.  152.  The  proceeding  is  in  all 
respects  as  under  the  old  practice. 

Application  for  Leave  to  defend,  after  Judgment,  obtained  by 
Publication^] — Where  the  summons  has  been  served  by  publi- 
cation, and,  before  judgment  has  been  entered  up,  the  defend- 
ant have  notice  of  and  decide  upon  defending  the  action,  he 
must  apply  to  the  court  for  leave  for  that  purpose.  See  Code, 
sec.  135,  last  clause.  The  application  should  be  made  upon  the 
summons  and  complaint,  if  the  same  have  been  received,  or 
else,  upon  proof  of  the  publication  of  the  summons;  and  such 
application  should  be  accompanied  by  the  usual  affidavit  of 
merits,  or  by  other  proof  that  the  defendant  has  a  real  defence 
to  the  action,  so  as  to  show  "sufficient  cause"  for  making  the 
application.  When  such  cause  is  shown,  the  order  would  seem 
to  be  of  course,  as  the  section  expressly  provides  that  he  "must 
be  allowed  to  defend  the  action;"  and  the  application  may 
therefore  be  made  ex  parte,  and  not  by  special  motion,  or  order 
to  show  cause. 

( 'aution}  where  Notice  of  Object  of  Suit  served.] — Where  the  de- 
fendant  baa  been  served,  under  sec.  131,  with  notice  of  object 
of  suit,  and  that  no  personal  demand  is  made  against  him  by 
the  plaintiff,  and  he  then  defends,  be  does  so  at  his  peril,  as  far 
Is  the  quesl  ion  of  costs,  [f,  therefore,  he  be  convinced 
that  the  suil  is  one  of  this  nature,  and  that,  although  a  formal 
party,  be  really  baa  no  personal  interesl  in  the  controversy,  his 
Caking  any  further  steps  in  the  matter  will  not  merely  be  un- 
necessary, but  unwise. 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  447 

§  144.    Time  to  plead. 

The  different  preliminary  proceedings  admissible  on  the  part 
of  the  defendant,  before  pleading  to  the  complaint,  having  thus 
been  considered,  the  last  point  to  be  entered  upon  in  the  pre- 
sent chapter,  is  with  reference  to  the  time  allowed  to  him  for 
that  purpose. 

The  section  of  the  Code  providing  for  this  subject  is  No.  143, 
and  runs  as  follows : 

§  143.  The  only  pleading  on  the  part  of  the  defendant,  is  either  a 
demurrer  or  an  answer.  It  must  be  served  within  twenty  days  after 
the  service  of  the  copy  of  the  complaint. 

Precisely  the  same  period  is  fixed  by  section  153,  with  refer- 
ence to  the  reply  to  be  put  in  by  the  plaintiff,  where  necessary, 
and  the  cases  applicable  to  one  description  of  pleading,  are 
equally  in  point  as  regards  the  other.  The  subject  of  time 
to  plead  will,  therefore,  be  here  entered  upon,  as  a  whole;  and 
all  the  cases  upon  the  subject  cited,  whether  applicable  to  de- 
murrer, answer,  or  reply. 

The  first  remark  essential  to  be  made  on  this  head,  is  with 
reference  to  the  effect  of  an  order  for  discovery  of  papers,  &c. ; 
which  order,  under  Rule  11  of  the  Supreme  Court,  operates  as 
an  entire  stay  of  proceedings,  until  it  is  either  complied  with  or 
vacated.  The  party  obtaining  such  order,  it  is  expressly  pro- 
vided by  that  rule,  "shall  have  the  like  time  to  prepare  his 
complaint,  answer,  reply,  or  demurrer,  to  which  he  was  entitled 
at  the  making  of  the  order."  Such  order,  therefore,  operates 
as  a  positive  stay  of  proceedings,  and  extension  of  the  time  to 
plead,  pending  its  operation.  The  same  may  possibly  be  held 
with  reference  to  the  demand  of  a  bill  of  particulars,  though, 
in  this  case,  until  the  point  is  definitely  settled,  it  will  be  more 
prudent  to  obtain  an  extension  by  order. 

Computation  of  Time  ;  from,  and  to  what  Periods.'] — With  re- 
ference to  the  mode  in  which  the  twenty  days  allowed  to  plead, 
and  any  extensions,  are  to  be  computed,  provision  is  made  by 
sec.  407,  which  runs  as  follows : 

§  40V.  The  time  within  which  an  act  is  to  be  done,  as  herein  pro- 


448  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

vided,  shall  be  computed  by  excluding  the  first  day  and  including  the 
last.     If  the  last  day  be  Sunday,  it  shall  be  excluded. 

This  provision,  being  of  general  application,  has  been  al- 
ready fully  considered,  and  the  cases  generally  applicable  cited, 
under  the  head  of  Formal  Proceedings.  It  is  clearly  settled 
that,  with  reference  to  the  limitation  of  time  in  all  cases,  the 
party  has  the  whole  of  the  last  day  to  perform  the  act  required ; 
so  that,  for  instance,  where  the  summons  and  complaint  are 
served  on  the  first  of  the  month,  the  defendant  will  have  the 
whole  of  the  21st  in  which  to  plead :  but,  if  he  omit  to  do  so 
on  that  day,  the  plaintiff  may  take  his  default  on  the  morning 
of  the  22d.  See  Schenck  v.  McKie,  4  How.  246,  3  C.  K.  24 ; 
Truax  v.  Clute,  7  L.  0.  163;  Judd  v.  Fulton,  4  How.  298,  10 
Barb.  117;  and  other  cases  there  cited.  See  also  O'Brien  v. 
Catlln,  1  C.  R  (N.  S.)  273. 

The  possible  effect  of  service  by  mail,  in  doubling  the  time 
to  plead,  in  cases  where  it  is  admissible,  must  not  be  lost  sight 
of.  See  this  subject  treated  heretofore,  and  the  various  cases 
cited  in  sec.  55  under  the  head  of  Service  by  Mail. 

Where  the  summons  was  served  separately,  and  a  copy  of 
the  complaint  afterwards  delivered  to  the  defendant,  but  not  on 
his  demand,  and  merely  as  part  of  the  proceedings  on  an  arrest, 
it  was  held  that  the  time  to  answer  ran  from  the  service  of  the 
summons,  not  of  the  complaint,  and  a  judgment  entered  on  the 
expiration  of  the  former  period,  was  held  to  be  regular.  Van 
Pelt  v.  Buyer,  7  How.  325. 

In  relation  to  the  time  which  will  be  allowed  in  cases  of 
service  by  publication,  see  that  subject  heretofore  treated  under 
tii''  head  of  Summons.  The  safer  course  for  a  defendant  will  be 
i' i  adopt  the  view  taken  in  Dyhers  v.  Woodward,  there  cited; 
though  whether  that  view  is  sustainable  seems  more  than 
doubtful;  : 1 1 1 <  1  in  arrange,  if  possible,  to  put  in  his  answer,  within 
twenty  days  after  he  receives  actual  notice  of  the  summons  ;  the 
irse  for  tin',  plaintiff,  to  defer  entering  his  judgment 
until  tin;  publication  is  complete,  at  all  events,  if  not,  till  twenty 
days  afi  completion.      See  Tomlinson  v.  Van  Vechlen, 

there  also  cited,  :i  case  which  seems  to  tend  in  tin;  opposite 
direction.  The  time  of  actual  completion  of  service  seems  to 
be  the  preferable  period,  as  the  defendant's  rights  to  come  in 
and  defend  afterwards  an'  fully  saved  by  the  Code,  and  there 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  449 

seems  no  adequate  reason  why  the  plaintiff's  proceedings 
should  be  hung  up  for  any  longer  period  than  the  six  weeks 
required  by  the  section  in  question. 

Extension  of  Time  by  Consent.'] — If  the  party,  or  his  attorney, 
from  any  reason,  finds  himself  unable  to  prepare  his  pleading 
within  the  time  allowed  by  the  above  sections,  the  usual  course 
is  to  apply  to  the  adverse  attorney  for  a  consent  enlarging  the 
time,  unless,  for  other  reasons,  the  request  be  unadvisable. 
This  consent  must,  of  course,  be  in  writing,  and  signed  by  such 
attorney,  or  else,  under  Rule  37  of  the  Supreme  Court,  it  will 
not  be  binding;  but,  within  these  conditions,  no  particular  form 
is  necessary.  The  party  obtaining  it  will,  of  course,  take  care 
that  the  period  allowed  is  distinctly  expressed,  and  that  the 
cause  in  which  the  consent  is  given,  is  distinctly  referred  to. 

Extension  of  Time  by  Order.] — If,  for  any  reason,  this  course 
be  unadvisable,  or  if  time  be  refused,  application  may  then  be 
made  for  an  order  extending  the  time  to  plead.  This  proceed- 
ing is  specially  provided  for  by  sec.  405  of  the  Code,  which 
runs  as  follows : 

§  405.  The  time  within  which  any  proceeding  in  an  action  must  be 
had,  after  its  commencement,  except  the  time  within  which  an  appeal 
must  be  taken,  may  be  enlarged,  upon  an  affidavit  showing  grounds 
therefor,  by  a  judge  of  the  court,  or,  if  the  action  be  in  the  Supreme 
Court,  by  a  county  judge.  The  affidavit,  or  a  copy  thereof,  must  be 
served  with  a  copy  of  the  order,  or  the  order  may  be  disregarded. 

This  provision  is,  as  will  be  seen,  general ;  and,  in  its  other 
aspects,  will  be  hereafter  considered.  Under  the  powers  here 
conferred,  in  connection  with  those  of  sec.  401,  and  the  other 
provisions  before  referred  to,  (particularly  in  the  introductory 
chapters  relative  to  the  jurisdiction  of  the  Supreme  Court,)  any 
judge  of  that  court,  or  any  county  judge,  in  any  part  of  the 
State5  (the  latter,  of  course,  within  the  limits  of  his  jurisdic- 
tion,) may  make  orders  of  this  description,  in  suits  falling 
within  his  cognizance,  without  reference  to  the  district  in  which 
the  cause  is  actually  pending. 

In  Wilcoch  v.  Curtis,  1  C.  R  96,  it  was  held  that  the  restric- 
tion in  sec.  401,  that  "no  order  to  stay  proceedings,  for  a  longer 
time  than  twenty  days,  shall  be  granted  by  a  judge  out  of  court, 
29 


450  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

except  upon  previous  notice  to  the  adverse  party,"  did  not 
comprise  an  order  extending  the  time  to  answer,  inasmuch  as 
it  did  not  effect  a  general  stay;  and  this  case  does  not  appear 
to  have  been  directly  overruled.  The  doctrine  is  one,  however, 
not  to  be  depended  upon.  A  practice  sprung  up,  instead,  of 
obtaining  ex  parte  a  series  of  twenty-day  orders,  where  more  than 
the  original  period  was  required;  but,  in  several  recent  cases, 
this  mode  of  proceeding  has  been  held  irregular.  The  only 
safe  course  of  proceeding  will  be  to  answer  within  the  original 
period,  if  possible;  if  not,  to  obtain  an  ex  parte  extension  for  twen- 
ty days,  and,  if  that  period  should  not  be  sufficient,  then  to  apply 
to  the  court,  on  notice,  for  such  further  period  as  may  be  actu- 
ally requisite.  See  this  subject  heretofore  treated,  and  various 
cases  cited  in  sec.  64,  under  the  head  of  Ex  parte  Motions. 

The  application  for  an  order  of  this  nature  is,  in  the  first 
instance,  strictly  ex  parte,  and  must  be  made  on  affidavit,  either 
of  the  party  or  his  attorney.  The  managing  clerk  of  the  latter 
will  also,  in  most  cases,  be  competent  to  make  it.  To  give  any 
positive  form  for  the  affidavit  would  be  superfluous,  since  in  no 
two  cases  is  it  probable  that  the  circumstances  will  be  exactly 
alike.  The  following  general  observations  seem,  however,  to 
be  applicable : 

1.  The  date  at  which  the  current  time  expires,  either  with 
reference  to  the  original  service  of  the  summons,  or  the  expira- 
tion of  the  last  extension  granted,  should  be  stated;  and,  under 
the  latter  circumstances,  the  fact  that  the  time  has  already  been 
extended  must  appear,  or  the  court  will  feel  strongly  disposed 
in  favor  of  granting  an  application  to  vacate  the  order,  unless 
it  be  clearly  shown  that  such  omission  was  not  made  with.any 
view  to  concealment  or  misrepresentation. 

2.  The  circumstances  under  which  the  indulgence  is  required, 
should  be  clearly,  though  concisely  shown,  care  being  taken  by 
the  party  swearing  to  the  affidavit,  to  lay  bare  his  own  case 
as  little  ;is  possible,  whilst  .slating  enough  to  induce  the  court 
to.  act. 

The  order  obtained  or  this  application  is  generally  endorsed 
on  the  affidavit,  and  in  such  case,  runs  merely  in  the  words,  or 
to  the  effect,  "let  the  defendant  A.  B.  have  days  additional 
time  to  an  wer  in  the  cause,"  the  date  being  added.  An  order 
in  this  form  extends  the  time  to  demur.  See  Brodhead  v. 
Broadhead,  1  Eow.  ^('S,  8  (J.  U.  8.     Of  course,  when  the  order 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  4.5 1 

is  for  time  to  reply,  this  wording  must  be  changed.  The 
judge's  signature  being  obtained  to  this  memorandum,  a  copy  of 
it,  and  also  of  the  affidavit  on  which  it  was  granted,  (which  last 
is  indispensable,)  must  be  served  on  the  opposite  party,  and 
then  the  proceeding  is  complete.  Neither  order  nor  affidavit  need 
be  filed,  or  entered  with  the  clerk  of  the  court.  See  Savage  v. 
Belyea,  3  How.  276  ;  ICE.  42.  In  Schench  v.  McKie,  4  How. 
246,  3  C.  E,  24,  it  was  held  that  an  order,  granting  additional 
time  to  answer,  does  not  commence  to  run  until  the  then  cur- 
rent time  shall  have  expired.  The  order  in  that  case  was  made 
on  the  1st,  but  the  time  to  answer  expired  on  the  8th  October, 
and  it  was  held  that  such  order,  nevertheless,  extended  the 
time  till  the  28th. 

Of  course,  the  above  precautions,  or  one  of  them,  must  be 
taken  before  the  time  to  plead  has  actually  expired,  and,  at  the 
very  latest,  on  the  last  day  allowed  for  that  purpose.  If  delayed 
until  afterwards,  the  application  can  no  longer  be  made  to  the 
court  ex  parte.  See  Snyder  v.  White,  6  How.  321.  The  opposite 
party  having  then  become  actually  entitled  to  take  a  default, 
that  right  cannot  be  properly  taken  from  him,  unless  on  an  ap- 
plication on  notice,  either  by  way  of  motion  or  order  to  show 
cause.  The  latter  will,  probably,  be  found  the  most  convenient 
course,  an  interim  stay  of  proceedings  being  asked  for  as  part 
of  the  order.  The  emergency  is  one,  however,  that  ought  never 
to  occur,  with  proper  vigilance. 

It  would  seem  from  the  case  of  The  Columbus  Insurance  Company 
v.  Force,  8  How.  353,  that  an  extension  of  the  time  to  answer 
does  not,  per  se,  deprive  the  defendant  of  his  right  to  object  to  the 
legality  of  an  arrest,  though  any  laches  on  his  part  will,  doubt- 
less, do  so.  An  extension  of  the  time  to  answer  is,  however,  a 
waiver  of  all  objections  to  the  complaint,  and  a  bar  to  the  de- 
fendant's right  to  move  to  strike  out  irrelevant  matter,  unless 
the  right  to  make  the  motion  is  expressly  given.  Bowman  v* 
Sheldon,  5  Sandf.  651,  10  L.  0.  338;  Hollister  v.  Livingston,  9 
How.  141. 

Extension  of  Time,  by  Effect  of  Amendment.'] — Lastly,  in  relation 
to  the  time  allowed  to  plead,  the  effect  of  an  amendment  by  the 
adverse  party  must  not  be  forgotten.  The  consequence  of  such 
an  amendment  is,  to  establish  a  new  period  altogether,  in  lieu 
of  that  current  before  the  service  of  the  amended  pleading. 


452  DEFENDANT'S  COURSE,  BEFORE  ANSWER. 

The  time  will  then  run  in  the  usual  manner,  as  from  the  date 
of  such  service,  without  any  reference  whatever  to  the  proceed- 
ings prior  thereto.  See  this  subject  previously  considered,  and 
the  cases  thereon  cited  in  sections  114  and  116,  under  the  head 
of  Amendments  as  of  course,  or  by  leave  of  the  court. 

§  145.  Relief  where  Default  suffered. 

Positive  as  is,  in  terms,  the  limitation  on  pleading  imposed 
by  the  above  provisions,  the  courts  have  throughout  shown  a 
very  strong  disposition  to  relax  the  strictness  of  this  rule  in 
practice,  though,  of  course,  only  upon  the  existence  of  a  bond 
fide  defence  being  shown,  and  on  conditions  imposed.  The  fol- 
lowing general  principle  runs,  too,  through  all  the  cases  upon 
the  subject,-  i.  e.,  that,  where  a  defendant,  already  in  default, 
applies  for  leave  to  be  allowed  to  come  in  and  defend,  his  pro- 
posed answer  should  be  drawn  and  sworn  to,  and  a  copy 
thereof  served,  with  the  notice  of  motion  or  order  to  show 
cause  by  which  such  relief  is  asked :  in  order  that  the  court 
may  judge,  as  to  whether  the  case  is  a  proper  one  in  which  to 
grant  relief  of  that  nature,  and  as  to  the  proper  terms  to  be 
imposed,  as  conditions  on  granting  it.  See  this  last  principle, 
as  held  under  the  old  practice,  in  McGaffigan  v.  Jenkins, 
1  Barb.  31. 

The  earliest  case  on  the  above  subject,  as  applicable  to  pro- 
ceedings under  the  Code,  is  Lynde  v.  Verity,  8  How.  350,  1  C. 
R.  97,  where  the  whole  of  the  different  principles,  as  above 
stated,  are  distinctly  laid  down.  In  Salutat  v.  Dowries,  1  C.  R. 
120,  the  same  indulgence  was  granted,  after  a  discussion  as  to 
whether  the  court  had,  or  had  not,  power  to  enlarge  the  time  at 
all.  By  Allen  v.  Achley,  however,  4  How.  5,  the  doctrine  was 
carried  to  the  fullest  extent,  two  defendants  having,  in  that 
.  been  let  in  to  defend,  after  judgment  had  been  taken 
;.-ist  them  by  default;  one  of  them  only  making  what  the 
court  pronounced  to  be  a  \a\ne  excuse  for  nol  answering,  and 
the  other  making  no  excuse  at  all.  The  court,  however,  im- 
posed strict  terms  and  conditions ;  in  particular,  that  the  Statute 
of  Limitations  should  not  be  pleaded,  and  also  that  the  judgment 
ild    tand      s  security  to  the  plaintiff. 

In  Grant  v.  AfcCaughin,  I  I  low.  216,  the  defendant  was  al- 
lowed to  come  in  and  defend,  alter  judgment  had  been  entered 


DEFENDANT'S  COURSE,  BEFORE  ANSWER.  453 

against  him,  in  consequence  of  a  misapprehension,  as  to  the 
effect  of  a  stipulation  given,  extending  his  time  to  answer;  and, 
under  these  circumstances,  the  court,  though  enforcing  the 
payment  of  costs,  and  directing  the  judgment  to  stand  as  secu- 
rity, refused  to  impose  any  condition  as  to  the  nature  of  the 
defence  sought  to  be  set  up,  which  in  that  case  was  usury. 

Where,  however,  an  unconscientious  or  dishonest  defence  is 
sought  to  be  set  up,  after  default,  the  court  will  not  open  that 
default,  or  relieve  the  party  from  the  consequences  of  his  own 
neglect.  See  James  0.  King  v.  TJie  Merchants'  Exchange  Com- 
pany, 2  Sandf.  693. 

In  Foster  v.  Udell,  2  C.  E.  30,  the  New  York  Common  Pleas 
decided  that  a  delay  on  the  part  of  the  plaintiff  in  taking  judg- 
ment, was  equivalent  to  a  consent  to  give  the  defendant  further 
time  to  answer;  and  they  set  aside,  as  irregular,  a  judgment  so 
obtained  ;  the  defendant,  long  after  his  time  had  expired,  but 
before  judgment  was  entered,  having  served  an  answer,  but 
which  the  plaintiff's  attorney  had  refused  to  receive.  The  doc- 
trine of  this  case  has,  however,  been  since  overruled.  A  de- 
cision exactly  contrary  to  it  was  given  by  the  Supreme  Court, 
in  the  case  of  Dudley  v.  Hubbard,  2  C.  E.  70 ;  and  a  motion  to 
set  aside  a  judgment  thus  entered,  was  denied,  with  costs.  In 
McGown  v.  Leavenworth,  3  C.  E.  151,  the  same  principle  is  laid 
down ;  and  this,  being  a  decision  of  the  general  term  of  the 
same  court  by  which  Foster  v.  Udell  was  decided,  directly  over- 
rules it.  It  was  also  held,  in  the  same  case,  that  an  order 
staying  the  plaintiff's  proceedings,  does  not,  per  se,  enlarge  the 
defendant's  time  to  answer.  It  can  only  be  so  by  order  specially 
obtained  for  that  purpose.  The  stay  of  proceedings  only  pre- 
cludes the  plaintiff  from  taking  advantage  of  the  omission,  until 
that  stay  is  vacated,  or  at  an  end.  The  defendant  had  there,  on 
the  last  day,  obtained  an  order  to  show  cause  why  he  should 
not  have  further  time  to  plead,  with  an  interim  stay  of  proceed- 
ings as  usual,  which  order  was  discharged  on  the  return.  Pend- 
ing that  stay,  but  after  the  time  actually  allowed  had  expired, 
the  defendant  had  served  his  answer,  which  service  was  held  to 
be  irregular,  and  was  set  aside. 

In  Mandeville  v.  Winne,  5  How.  461,  1  C.  E.  (N.  S.)  161,  the 
doctrine  of  the  above  cases,  and  particularly  as  laid  down  in 
Dudley  v.  Hubbard,  was  distinctly  confirmed;  and  the  same 
seems  to  be  implied  in  Graham  v.  McCoun,  5  How.  353 ;  ICE. 


454  DEMURRER. 

(1ST.  S.)  43.  It  ma}',  therefore,  be  looked  upon  as  settled,  that,  if 
the  defendant  allow  his  time  to  plead  to  go  by  without  obtain- 
ing an  extension,  he  cannot  afterwards  serve  his  pleading,  in 
ordinary  form,  or  without  leave  of  the  court,  specially  obtained 
on  notice  to  the  plaintiff;  and  this,  although  the  latter  may  not 
at  the  time  have  taken  any  steps  to  avail  himself  of  the  default 
suffered.  See,  likewise,  a  Brim  v.  CatUn,  1  C.  K.  (N.  S.)  273. 
Of  course,  however,  if  the  plaintiff's  solicitor  expressly  receive, 
or  do  not  return  the  pleading  thus  irregularly  served,  within 
a  reasonable  time,  the  defect  will  then  be  waived,  and  the  an- 
swer may  be  sufficient.  See  introductory  chapter  on  formal 
requisites  of  pleading,  and  various  cases,  including  Laimbeer  v. 
Allen,  2  Sandf.  648 ;  2  C.  E.  15,  there  cited.  The  same,  too,  is 
implied  in  McGown  v.  Leavemvortli,  above  mentioned;  and  a 
return  within  the  same  day  in  which  the  pleading  was  served, 
was  held  to  be  a  reasonable  time. 

The  plaintiff,  too,  cannot  take  advantage  of  a  default  occa- 
sioned by  the  laches  or  bad  faith  of  his  own  attorney,  where 
the  defendant's  pleading  has  been  ready,  and  attempted  to  be 
served  within  due  time.  Thus,  in  Falconer  y.  Ucoppel,  2  C.  R. 
71,  on  the  last  day  of  service,  the  defendant  endeavored,  in 
office  hours,  to  serve  his  answer  at  the  plaintiff's  office,  and  also 
at  his  dwelling,  but  both  were  closed,  and  no  one  was  there  to 
receive  it;  but,  on  the  following  day,  such  defendant  succeeded 
in  serving  the  answer  on  the  plaintiff  personally,  with  notice  of 
the  attempted  service  on  the  day  before:  under  which  circum- 
stances it  was  held  that  the  service  was  regular,  and  costs  were 
given. 


C  II  A  P  T  E  \l    III. 

I)  KM  UIIRER. 

§  146.   General  Nature  and  Office  of  Demurrer. 

THE  office  of  this  species  of  pleading  is  the  formal  impeach- 
ment of  defects  in  the  plaintiff's  case,  apparent  upon  his  own 


DEMURRER.  455 

showing.  It  is,  therefore,  a  measure  of  comparative  infrequency, 
as,  in  a  well-drawn  pleading,  it  rarely  happens  that  any  such 
salient  points  of  attack  are  left  uncovered.  If  the  defects  objected 
to  require  any  statement  or  proof  of  facts  to  make  them  apparent, 
demurrer  will  not  lie.  The  objection,  in  that  case,  can  only  be 
taken  by  answer,  and  the  defendant's  rights,  in  that  respect,  are 
specially  saved  by  section  147.  In  practice,  therefore,  this  will 
be  the  most  usual  course. 

In  Humphreys  v.  Chamberlain,  1  C.  R.  (N.  S.)  387,  it  was 
accordingly  held  that  a  demurrer  to  an  action  on  a  contract, 
on  the  ground  that  such  contract  was  void  by  the  laws  of  the 
State  in  which  it  was  made,  was  bad,  and  that  the  objection 
could  only  be  taken  by  answer;  inasmuch  as  the  contents  of 
foreign  statutes  are  a  matter  of  evidence,  which  must  be  set 
up  in  the  pleadings  as  a  fact,  and  proved  at  the  trial  accord- 
ingly. 

In  Carroll  v.  Carroll,  11  Barb.  293,  the  rule  is  laid  down  thus: 
"A  demurrer  must  generally  depend  on  that  which  appears  on 
the  complaint,  and  not  on  that  quod  non  constat,  unless  this  last 
is  essential  to  a  prima  facie  cause  of  action." 

In  Getty  v.  Hudson  River  Railroad  Company,  8  How.  177, 
it  is  also  laid  down  that  a  demurrer  is  only  appropriate,  when 
the  ground  of  objection  appears  on  the  face  of  the  pleading 
demurred  to.  The  same  doctrine,  and  that,  where  such  is  the 
case,  the  objection  on  that  ground  can  only  be  taken  by  answer, 
is  distinctly  laid  down  in  The  Union  Mutual  Insurance  Company 
v.  Osgood,  1  Duer,  707. 

Where  the  complaint  in  an  action  showed  a  title  to  sue,  but 
contained  insufficient  averments  on  the  subject  of  that  title, 
answer,  not  demurrer,  was  held  to  be  the  proper  form  of  raising 
the  question.     Millard  v.  Shaw,  4  How.  137. 

Demurrer  will  only  lie  to  an  entire  pleading,  or  to  an  entire 
cause  of  action,  or  ground  of  defence  therein  stated.  Redun- 
dant or  immaterial  matter,  of  which  a  portion  is  relevant,  cannot 
be  so  impeached ;  the  proper  course  in  such  cases  is  a  motion 
to  strike  out  such  matter.  See  this  subject  very  fully  consi- 
dered, and  numerous  cases  in  point  cited,  in  a  prior  chapter, 
under  the  head  of  Correction  of  Pleadings,  on  motion  of  the 
adverse  party. 

The  converse  of  this  proposition  is  equally  true,  and,  wher- 
ever the  pleading  itself,  or  any  separate  statement  of  a  cause  of 


456  DEMURRER. 

action,  or  a  ground  of  defence,  is  irrelevant,  as  a  whole,  and  not 
in  part  only,  the  proper  mode  of  raising  the  question  will  be 
by  demurrer,  and  not  by  motion.  White  v.  Kidd,  4  How.  68; 
Fabbricottiv.  Launitz,  3  Sandf.  743;  1  0.  E.  (N.  S.)  121;  Bene- 
dict v.  DaJce,  6  How.  352;  Nichols  v.  Jones,  6  How.  355;  Belden 
v.  Knowlton,  Superior  Court,  unreported;  Harlow  v.  Hamilton, 

6  How.  475 ;  Seivard  v.  Miller,  6  How.  312 ;    Salinger  v.  Lusk, 

7  How.  430 ;  Bailey  v.  Easterly,  7  How.  495 ;  Miln  v.  Vose,  4 
Sandf.  660;  Reed  v.  Latson,  15  Barb.  9;  Scovell  v.  Howell,  2  C. 
E.  33;  Bedell  v.  Stickles,  4  How.  432;  3  C.  E.  105;  all  before 
noticed,  in  the  chapter  last  referred  to.  See,  likewise,  decision 
of  New  York  Common  Pleas,  in  Brien  v.  Clay,  a  case  of 
mechanic's  lien,  published  by  the  clerk  of  that  court.  See  also 
Van  Namee  v.  Peoble,  9  How.  198.  In  relation  to  insufficient 
statements,  demurrer  is  the  proper  course.  Hoxie  v.  Cushman, 
7  L.  0.  149. 

A  defect  in  the  complaint  demurred  to,  must  be  made  clearly 
apparent.  AYhere  a  complaint  was  objected  to,  on  the  ground 
that  it  did  not  show  affirmatively  that  the  debt  sued  for  was 
due  when  the  action  was  commenced,  the  court  refused  to  infer 
that  such  was  not  the  case,  for  the  purpose  of  supporting  a 
demurrer.  The  presumption,  if  any,  would  lie  the  other  way. 
Mdynardv.  Talcott,  11  Barb.  569.  See  Foster  v.  Hazen,  12  Barb. 
547,  as  to  a  similar  presumption,  in  favor  of  the  regularity  of 
the  proceedings  of  an  inferior  court.  Nor  will  a  demurrer,  as  a 
general  rule,  be  sustained  on  a  matter  of  mere  form,  if  there  are 
any  merits  in  the  case.  Howell  v.  Fraser,  6  How.  221;  1  C.  E. 
(X.  S.)270. 

Where  a  portion  of  a  pleading  was  sufficient,  a  demurrer  to 
the  whole  was  held  too  broad,  and  overruled,  in  Cooper  v.  Clason, 
1  C.  II.  |  X.  S.)  347.  See,  also,  Newman  v.  Otto,  10  L.  O.  14, 
•I  Sandf.  668.  Where,  however,  a  demurrer  was  sufficiently 
bro.-id  in  part,  oilier  portions  of  it,  objecting  to  irrelevant  mat- 
ter, and  therefore  in  themselves  inadmissible,  were  refused  to  be 
"ii  out.     Smith  v.  Brown,  6  How.  383. 

In  Beale  v.  Hayes^  5  Sandf.  640,  10  L.  O.  66,  the  fact  that  the 
plaintiff  demanded  judgment  lorn  larger  amount  than,  by  his 
own  showing,  he  was  entitled  to  recover,  was  held  not  to  be  a 
ground  of  demurrer.  Nor  will  unnecessary  prolixity  in  the 
plaintiff's  I  be  bo.    Johnson  v.  Snyder,  7  How.  395. 

'I'll-  demurrer  ami  answer  are  essentially  separate  pleadings, 
and  do  not  lose  their  distinctive  character  by  being  made  out 


DEMURRER.  457 

in  one  paper,  and  connected  in  form.  See  Howard  v.  The 
Michigan  Southern  Railroad  Company,  5  How.  206,  3  C.  II.  213, 
below  cited. 

This  form  of  pleading  was  held  by  the  New  York  Common 
Pleas  to  be  applicable  to  proceedings  under  the  Mechanics' 
Lien  Law,  where  otherwise  appropriate.  See  Doughty  v.  Develin, 
decision  published  by  the  clerk  of  that  court. 

The  demurrer  under  the  Code,  coupled  with  the  provisions 
for  striking  out  irrelevant  matter,  have  swept  away  entirely  the 
old  chancery  practice  of  exceptions.  Boyce  v.  Brown,  7  Barb. 
80  ;  3  How.  391  ;  Cobb  v.  Frazee,  4  How.  413  ;  3  C.  E.  43.  It 
is  a  new  species  of  pleading,  created,  and  its  character  and  office 
defined  by  the  Code,  and  the  old  rules  on  the  subject  exist  no 
longer.  Many  objections  under  the  old  practice  are  now  no 
longer  cognizable,  whilst  many  others,  which  formerly  were 
waived,  unless  pleaded  in  abatement,  can  now  be  taken  by 
means  of  this  pleading..  Swift  v.  Be  Witt,  3  How.  280;  1  C.  E. 
25 ;  6  L.  O.  314 ;  Manchester  v.  Storrs,  3  How.  401. 

The  old  rules  on  the  subject  of  the  effect  of  a  demurrer,  as 
necessarily  involving  an  admission  of  the  facts  of  the  plaintiff's 
case,  hold  good  under  the  Code.  Thus,  in  Hall  v.  Bartlett,  9 
Barb.  297,  it  is  held  that  "  a  demurrer  admits  the  facts  which 
are  relevant  and  well  pleaded,  but  not  conclusions  of  law.  Ford 
v.  Peering,  1  Ves.  Jun.  71,  Story's  PI.  452,  and  the  cases  there 
cited."  The  purchase  of  a  mortgage  by  an  attorney,  followed 
up  by  proceedings  on  his  part  to  foreclose  by  advertisement, 
was  held  not  to  be  a  purchase  with  intent  to  sue,  within  the 
meaning  of  2  E.  S.  288,  sec.  71,  and  judgment  was  given  for 
him  accordingly,  on  his  demurrer  on  that  ground.  See  likewise 
as  to  the  necessity  of  the  fact,  out  of  which  the  demurrer  arises, 
being  admitted,  Clark  v.  Van  Beusen,  3  C.  E.  219. 

In  Fry  v.  Bennett,  5  Sandf.  54 ;  9  L.  O.  330,  1  C.  E.  (N.  S.) 
238,  although,  strictly  speaking,  a  demurrer  to  answer,  several 
important  principles  are  laid  down,  in  reference  to  the  law  of 
demurrer  in  general.  They  are  as  follows  :  Mere  irrelevancy 
or  surplusage  are  not,  as  above  stated,  legitimate  grounds  of 
demurrer.  Malice,  in  libel,  on  a  publication  libellous  on  its 
face,  is  a  conclusion  in  law ;  unless  where  the  publication  would 
be  privileged,  if  not  in  fact  malicious.  So,  likewise,  with  respect 
to  inuendoes,  the  sole  office  of  which  is  explanation.  On  neither 
of  the  above  can  material  issues  be  raised  ;  but  the  latter,  when 


458  DEMURRER. 

improperly  framed,  may,  in  some  cases,  justify  a  demurrer. 
The  principle  is  laid  down,  that  "  an  answer  is  insufficient,  in 
the  sense  of  the  Code,  and,  therefore,  bad  upon  demurrer,  not  only 
when  it  sets  up  a  defence  groundless  in  law,  but  when,  in  the 
mode  of  stating  a  defence,  otherwise  valid,  it  violates  the  essen- 
tial rules  of  pleading,  which  the  Code  has  retained  ;"  and,  doubt- 
less, the  same  principles  would  be  held,  in  relation  to  averments 
of  a  cause  of  action.  Whether  a  publication,  libellous  on  its 
face,  may  be  excused  as  privileged,  is  a  question  of  law  that 
may  properly  be  raised  by  demurrer.  Where,  however,  privi- 
lege is  claimed,  on  the  ground  that  the  animadversions  com- 
plained of  were  fair  and  legitimate  criticism,  the  defences  of 
truth  and  privilege  are  inseparable;  and,  if  justification  be  not 
duly  pleaded,  privilege  cannot  be  so.  Justification,  and  matter 
in  mitigation,  are  likewise  inseparable  as  defences,  and  if  the 
latter  be  pleaded  without  the  former,  demurrer  will  lie.  See  cita- 
tion of  this  case  hereafter,  under  the  head  of  Answer.  Although, 
as  a  general  rule,  a  demurrer  must  cover  the  whole  of  the  plead- 
ing demurred  to,  it  need  not  do  so  with  respect  to  matter  rais- 
ing immaterial  issues,  such  as  on  malice,  or  inuendo,  as  above 
stated ;  and  only  those  allegations  in  a  complaint  are  to  be 
deemed  material  in  the  sense  of  the  Code,  which  the  plaintiff 
must  prove  upon  the  trial,  in  order  to  maintain  his  action.  A 
demurrer,  omitting  to  notice  allegations  of  the  above  nature, 
was  accordingly  there  sustained. 

A  demurrer  to  the  Code  itself,  as  unconstitutional,  inasmuch 
as  it  abolished  the  distinction  between  law  and  equity,  has  been, 
as  might  have  been  expected,  overruled  as  frivolous.  Anon.,  1 
C.  E.  49. 

M7.     Grounds  of  Demurrer  under  Code. 

General  Provisions.] — The  points  on  which  demurrer  will  lie. 
and  the  nature  of  that  pleading  in  general,  are  strictly  defined 
actions  144  and  .145  of  the  Code,  which  run  as  follows: 

8  144.  The  defendant  m;iy  demur  to  the  complaint,  when  it  shall 
appear  upon  the  face  thereof,  either — 

1.  That  the  court  lias  no  jurisdiction  <>(  the  person  of  the  defendant, 
or  the  subject  of  the  action  ;  or, 

2.  That,  the  plaintiff  has  not  legal  capacity  to  sue  ;  or, 

:?.  That  there  is  another  action  pending  between  the  same  parlies, 
for  the  same  cause  ;  or, 


DEMURRER.  459 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant ;  or. 

5.  That  several  causes  of  action  have  been  improperly  united  ;  or, 

6.  That  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

§  145.  The  demurrer  shall  distinctly  specify  the  grounds  of  objec- 
tion to  the  complaint.  Unless  it  do  so^it  may  be  disregarded.  It 
may  be  taken  to  the  whole  complaint,  or  (o  any  of  the  alleged  causes 
of  action  stated  therein. 

It  follows,  as  a  matter  of  course,  that  no  description  of  objec- 
tion which  does  not  fall  within  one  or  other  of  the  foregoing- 
classes,  will  now  form  ground  of  demurrer. 

Distinctness  in  stating  the  grounds  of  demurrer,  is,  as  will 
be  seen,  made  a  positive  requisite  by  sec.  145.  The  observa- 
tions in  a  foregoing  chapter,  in  reference  to  making  use  of  the 
exact  words  of  any  statutory  provision,  are  peculiarly  applica- 
ble to  demurrer ;  in  framing  which,  the  precise  phraseology  of 
the  subdivision  of  sec.  144,  under  which  the  objection  is  taken, 
should,  on  no  account,  be  omitted  in  any  instance,  either  as 
preliminary  to  the  statement  of  the  different  special  grounds,  or 
as  part  of  that  statement.     See  form  in  Appendix. 

It  is  now  provided  by  Eule  87,  inserted  on  the  last  revision, 
that,  in  all  cases  of  more  than  one  distinct  cause  of  defence,  the 
same  shall  not  only  be  separately  stated,  but  plainly  numbered. 
This  provision  should  be  attended  to  in  the  statement  of  grounds 
of  demurrer. 

We  now  proceed  to  take  up  the  different  causes  of  demurrer, 
as  prescribed  by  section  144,  seriatim,  and  in  their  order. 

1.  Want  of  Jurisdiction.] — The  objection  to  the  jurisdiction 
of  the  court  must  be  substantial,  not  formal,  and  must  arise 
upon  the  pleading  itself  demurred  to,  and  not  under  facts 
extrinsic  to  that  pleading.  Where,  therefore,  the  summons 
had  been  improperly  served,  a  demurrer  that  the  court  had  no 
jurisdiction  of  the  person  of  the  defendant  was  overruled.  The 
proper  course  for  him  to  have  pursued  on  such  occasion  was, 
to  have  moved  to  set  the  service  aside  for  irregularity.  Nones 
v.  The  Hope  Mutual  Insurance  Company ,  8  Barb.  541 ;  5  How. 
96;  3C.E.  161. 

An  objection  of  this  description  must  be  fully  made  out. 
The  court  will  not  assume  the  existence  of  facts  not  actually 
alleged,  in  order  to  render  void  the  proceedings  of  an  inferior 
tribunal ;  nor  will  any  presumption  be  indulged  in  such  a  case 


460  DEMURRER. 

to  oust  the  jurisdiction  of  such  tribunal,  where  enough  is  shown 
to  bring  the  case  within  the  general  language  of  the  statute 
which  confers  it.  Foster  v.  Hazen,  12  Barb.  547.  Jurisdiction 
is  intended  of  the  judgments  of  the  United  States  courts,  with- 
out specific  allegation.     Bement  v.  Wisner,  1  C.  R.  (N.  S.)  143. 

A  demurrer  on  the  above  ground  is,  doubtless,  the  proper 
course  to  be  adopted,  in  taking  objections  on  the  ground  of 
personal  privilege,  as  in  the  case  of  ambassadors,  consuls,  &c, 
•exempted  from  suit  in  the  State  courts,  in  cases  where  that 
privilege  is  apparent  on  the  plaintiff's  own  showing.  If  other- 
wise, demurrer  by  answer  will  be  the  proper  course  to  pursue. 

In  Flynn  v.  Stoughton,  5  Barb.  115,  it  was  held  that  the  pri- 
vilege of  a  foreign  consul  to  be  exempt  from  suit  in  the  State 
courts,  might  be  waived  by  an  answer  to  the  merits.  See, 
however,  previous  remarks  on  this  decision,  which  seems  to  be 
clearly  wrong,  and  to  be  overruled  by  the  cases  before  cited 
under  the  head  of  Parties. 

The  case  of  Hodgman  v.  The  Western  Railroad  Company,  7 
How.  492,  with  reference  to  a  cause  of  action  in  tort  not  being 
assignable,  so  as  to  enable  the  assignee  to  maintain  an  action, 
seems  to  bear  on  this  head,  though  the  demurrer  was  there 
taken  under  subdivision  6. 

2.  Want  of  Capacity  to  sue.~\ — This  subject  has  been  in  a 
great  measure  anticipated  in  a  previous  chapter,  under  the  head 
of  Parties. 

A  demurrer  on  this  ground  was  sustained  in  Fitzhvgh  v. 
Wilcox,  12  Barb.  238,  in  relation  to  the  contracts  of  a  lunatic, 
and  an  attempt  of  his  committee  to  sue  thereon,  without  the 
special  direction  of  the  court;  and,  likewise,  in  Hall  v.  Taylor, 
■s  Mow.  428,  in  relation  to  a  legal  action,  brought,  in  like  man- 
ner, by  the  creditor  of  an  habitual  drunkard  against  his  com- 
mittee. 

In  Stryleer  v.  Lynch,  1 1  L.  0.  1  L6,  it  was  held  that  the  plain- 
till'  in  partition  must  be  in  actual  or  constructive  possession  of 
bis  share  of  the  subject-matter  of  the  suit;  and  that,  where  the 
complain!  shows  the  legal  title  to  be  in  a  third  person  as  trustee, 
the  defect?  will  be  fatal. 

Sec  this  Bubjecl  previously  considered  in  the  chapter  on  com- 
plaint,  under  the  head  of  the  Plaintiff's  Right  to  sue. 

Autre  Action  pendant."] — Subdivision  8,  is  equivalent  to  the 


DEMURRER.  461 

former  plea  of  autre  action  pendant.  It  will  rarely  happen, 
however,  that  demurrer  pure  will  be  the  proper  remedy  in  this 
case.  Unless  the  fact  of  such  other  action  pending  appear  by 
the  complaint,  a  specific  averment  will  be  requisite,  and  de- 
murrer by  answer  will  then  be  the  proper  form.  See  Hornfager 
v.  Hornfager,  6  How.  279,  1  C.  R  (N.  S.)  412. 

To  be  pleadable  in  bar,  in  either  of  these  modes,  the  action 
forming  the  subject  of  that  pleading,  must  be  pending  in  some 
other  court  of  the  same  State.  Another  action,  for  the  same 
cause  in  the  courts  of  another  State,  constitutes  no  bar.  Bur- 
rowes  v.  Miller,  2  C.  K.  101;  5  How.  51.  "The  intention  of 
subdivision  3,  of  sec.  144,  was  merely  to  affect  the  form  of  as- 
serting a  defence  already  available  by  law,  and  not  to  alter  the 
nature  of  such  defence." 

The  defendant  is  not,  however,  remediless  in  this  last  matter. 
The  court  will,  in  a  clear  case,  prevent  oppression,  by  forcing 
the  jolaintiff  to  elect  in  which  action  he  will  proceed,  and  will 
suspend  proceedings  until  he  has  done  so.  Hammond  v.  Baker, 
3  Sandf.  704 ;  ICE.  (N.  S.)  105.  Jurisdiction  being  intended 
of  the  judgments  of  the  United  States'  courts,  (see  Bement  v. 
Wisner,  1  C  K.  (N.  S.)  143,)  it  might  probably  be  held  that  the 
plea  of  another  action,  pending  in  those  courts,  in  whatever 
district  of  the  United  States,  would  be  sufficient. 

Defect  of  Parties.] — The  subject  of  nonjoinder  of  parties  has 
been  anticipated  in  the  previous  chapter,  under  the  heads  of 
Parties  and  Complaint. 

In  cases  of  demurrer  on  this  ground,  the  first  clause  of  section 
122,  or,  rather,  the  whole  of  that  section  as  it  stood  in  the  Code 
of  1849,  will  be  held  to  be  the  controlling  provision.  Where 
the  court  cannot  determine  the  controversy  before  it,  without 
prejudice  to  the  rights  of  others,  or  by  saving  those  rights,  de- 
murrer will  lie,  and  the  court  must  cause  those  parties  to  be 
brought  in.  If  the  contrary  be  the  case,  and  the  controversy 
can  be  decided  as  above,  the  demurrer  will  not  be  well  taken. 
Wallace  v.  Eaton,  5  How.  99  ;  3  0.  K.  161. 

A  demurrer  on  this  ground  will  not  lie  for  an  excess  of 
parties,  but  only  for  a  deficiency.    Stryker  v.  Lynch,  11  L.  0.  116. 

Misjoinder  of  Causes  of  Action.] — The  improper  joinder  of 
causes  of  action,  is  a  defect  which  must  be  carefully  avoided. 


462  DEMURRER. 

In  respect  to  matters  of  this  nature,  sec.  167  is  the  controlling 
provision.  This  question  has  been  already  very  fully  con- 
sidered, and  numerous  cases  cited,  under  the  head  of  Joinder 
in  the  chapter  on  Complaint,  to  which,  therefore,  the  reader  is 
referred. 

"Where  objection  is  taken  to  the  complaint  on  this  ground, 
demurrer,  not  motion,  is  the  proper  remedy.  Stannard  v.  Mattice, 
7  How.  5.     See  Bailey  v.  Easterly,  7  How.  495. 

The  objection  of  improper  joinder  of  causes  of  action  is, 
however,  of  wider  scope,  and  will  include  the  mixing  up  of 
different  causes  of  action  of  the  same  class,  in  one  general  state- 
ment. See  this  subject  also  heretofore  considered,  and  several 
cases  cited,  in  the  chapter  on  Complaint,  under  the  head  of 
Joinder,  and  in  that  as  to  the  essential  requisites  of  pleading. 

In  accordance  with  this  principle,  it  was  held  in  The  Ogdens- 
burgh  Bank  v.  Paige,  2  C.  E.  75,  that  where,  by  the  complaint, 
several  distinct  acts  were  separately  averred,  in  support  of  the 
same  cause  of  action,  separate  demurrers  might  be  interposed 
to  each  of  such  averments. 

6.  Insufficiency.'] — The  consideration  of  this  head  has  been 
anticipated,  and  the  numerous  cases  in  point  cited  in  the  chap- 
ter devoted  to  the  consideration  of  complaint.  See  that  chapter, 
passim,  and  especially  under  the  heads  of  the  Plaintiff's  Right 
to  sue,  and  Averments  in  Complaint,  generally  and  specially 
considered. 

§  148.    Mode  of  Statement  of  Grounds  as  above. 

The  point  as  to  whether  a  demurrer,  simply  following  the 
words  of  the  statute,  is,  or  is  not,  a  sufficient  pleading,  has 
given  rise  to  considerable  and  somewhat  doubtful  discussion. 

A  general  demurrer,  objecting  only,  "That  the  complaint 
does  Dot  Btate  I '. i < ■  t s  sufficient  to  constitute  a  cause  of  action," 
has  beeo  objected  to  ami  held  bad  on  the  ground  that,  to 
render  a  demurrer  valid,  it,  must,  under  sec.  145,  distinctly  spe- 
cify ili'-  grounds  of  objection,  so  as  to  enable  the  opposing 
party  to  ascertain  what,  is  the  alleged  omission  or  defect  com- 
plained of,  iii  order  that,  if  thought  fit',  he  may  amend.  Grant 
v.  Lasher^  2  0.  I:.  2;  Hunter  v.  Frisbee,  2  6.  R.  59,  7  L.  0.  319; 
White  v.  Lowt  7   Barb.  204  ;   Qlenny  v.  Hitchins,  4 How.  98;  2 


DEMURRER.  463 

C.  E.  56,  and  Surifk  v.  Dewitt,  3  How.  280 ;  1  C.  B.  25  ;  6  L.  O. 
314.  And  this  same  view  has  been  strenously  supported  in  the 
more  recent  cases  of  Purdy  v.  Carpenter,  6  How.  361,  and  Hinds 
v.  Tiveddle,  7  How.  278,  the  last  being,  however,  a  case  of  de- 
murrer for  misjoinder. 

In  Swift  v.  Dewitt,  however,  above  noticed,  the  learned  judge 
doubted  whether  a  specification  of  the  above  nature  could  or 
ought  to  be  required  in  all  cases,  and  stated,  he  was  inclined  to 
think  it  was  enough  to  state  that  the  complaint  did  not  show  a 
sufficient  cause  of  action. 

In  Durhee  v.  The  Saratoga  and  Washington  Railroad  Company, 
4  How.  226,  the  above  doubt  was  adopted,  and  full}''  confirmed ; 
and  it  was  distinctly  and  positively  held,  that  the  objection  in 
question  was  well  raised,  by  a  demurrer  which  merely  specified 
that  ground  of  objection  in  the  words  of  the  statute.  This 
doctrine  is  absolutely  confirmed  by  Johnson  v.  Wetmore,  12 
Barb.  433 ';  Dauchy  v.  Bennett,  7  How.  375 ;  Hoogland  v.  Hudson, 
8  How.  343;  Getty  v.  The  Hudson  River  Railroad  Company,  8 
How.  177,  and  likewise  by  the  Court  of  Appeals  in  Haire  v. 
Baker,  1  Seld.  357.  It  is  also  supported,  with  reference  to  de- 
murrer to  answer,  by  Hyde  v.  Conrad,  5  How.  112,  3  C.  E.  162; 
Anibal  v.  Hunter,  6  How.  255,  1  C.  E.  (N.  S.)  403;  Arthur  v. 
Brooks,  14  Barb.  533,  and  Noxon  v.  Bentley,  7  How.  316.  The 
authority  of  these  cases  seems  to  be  preponderating,  and  to 
settle  the  question  that  a  demurrer  for  insumcienc}^,  under  sec. 
144,  subdivision  6,  can  properly  be  taken  in  the  words  of  the 
statute,  without  further  specification. 

In  Getty  v.  The  Hudson  River  Railroad  Company,  above  cited, 
an  exception  was  made,  in  favor  of  demurrers  for  want  of 
jurisdiction  and  defect  of  parties,  as  to  which,  it  was  considered, 
that  a  further  specification  ought  to  be  made,  so  far  as  to  point 
out,  in  the  former  case,  whether  the  alleged  want  of  jurisdiction 
related  to  the  person  of  the  defendant,  or  the  subject  of  the 
action;  and,  in  the  latter,  whether  the  defect  of  parties  com- 
plained of  was  in  respect  of  parties  plaintiff,  or  defendant;  it 
being  held,  as  above,  that,  in  all  other  cases,  a  statement  in  the 
words  of  the  statute  is  sufficient.  In  the  same  case  it  is  laid 
down,  that  it  is  enough  to  sustain  a  demurrer,  if  any  of  the 
objections  specified  appear  on  the  face  of  the  complaint.  Al- 
though the  point  seems  thus  definitively  settled,  it  may  never- 
theless be  not  inexpedient,  to  state  shortly,  upon  the  face  of  the 


464  DEMURRER. 

demurrer,  the  points  on  which  it  is  contended  that  the  com- 
plaint does  not  show  a  sufficient  cause  of  action,  taking  care  to 
raise  every  objection  which  can  be  properly  taken.  See  Kneiss 
v.  Seligman,  below  cited.  No  inconvenience  whatever  can  re- 
sult from  this  practice,  which  will,  moreover,  be  more  consonant 
with  the  principles  laid  down  by  the  framers  of  the  statute,  in 
their  report,  p.  141,  viz.,  "that  the  defendant  shall,  by  his 
answer,  point  out  his  defence  distinctly."  In  the  districts  in 
which  an  adverse  view  on  the  question  of  a  general  demurrer 
has  been  recently  held,  this  may  be  especially  advisable,  though 
perhaps  not  necessary. 

§  149.     Omission  to  demur. 

The  demurrer  must  not  only  distinctly  specify  the  grounds  of 
objection  to  the  complaint,  but,  if  any  such  ground  be  omitted, 
it  cannot  afterwards  be  taken  on  the  argument.  There  can  be 
no  doubt  but  that  the  principle  laid  down  in  this  respect  in 
Kneiss  v.  Seligman,  5  How.  425,  8  Barb.  439,  is  sound,  although 
that  case  more  directly  refers  to  demurrer  to  answer.  This 
latter  subject  will  be  treated  of  hereafter,  in  the  chapter  de. 
voted  to  the  consideration  of  reply. 

Provision  is,  in  fact,  expressly  made  by  sec.  148,  that  any 
objections  to  the  complaint,  not  expressly  taken  either  by  de- 
murrer or  answer,  will  be  deemed  to  be  waived,  excepting  only 
those  to  the  jurisdiction  of  the  court,  or  that  the  complaint  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  These 
two  objections  may  be  asserted  for  the  first  time,  at  any  period 
during  the  progress  of  the  cause,  even  on  an  appeal  to  the  ge- 
neral term  against  a  judgment  entered  under  sec.  247  ;  although 
in  this  last  case,  a  defendant  cannot  take  a  judgment  in  his 
favor,  having  ('ailed  to  raise  the  objection  in  proper  time  and 
form  for  that  purpose.  Raynor  v.  Cleric,  7  Barb.  581;  3  C. 
R.  230. 

Objections  as  to  insufficiency  or  defect  in  the  complaint,  must, 
however,  bi  at  erted  in  due  form,  and  in  due  time.  Thus, 
where  a  d<  fendant  had  failed  to  demur  on  the  ground  of  an 
evident  defect  in  the  complaint,  or  to  objeot  to  the  evidence 
offered  thereon  before  the  referee  to  whom  the  cause  was  refer- 
red, or  i"  excepl  to  that  referee's  decision;  it  was  held  that  he 
COtlld  not  raise  the  objection,  on  the  hearing  of  a  case  for  the 


DEMURRER.  465 

review  of  the  latter's  report.  It  was  not  properly  before  the 
court  at  that  time.     Carley  v.  Wilkins,  6  Barb.  557. 

In  Ludington  v.  Taft,  10  Barb.  447,  the  doctrine  that  the  ob- 
jection for  insufficiency  is  not  waived  by  an  omission  to  take  it 
on  the  pleadings,  is  maintained.  It  is  held,  however,  that, 
under  such  circumstances,  the  question  will  be,  not  whether  the 
complaint  is  perfect,  and  embraces  all  necessary  matters,  but 
only,  whether  there  are  facts  enough  set  forth  to  show  a  cause 
of  action. 

In  Spencer  v.  Wheelock,  11  L.  0.  329,  it  was  considered  that 
an  objection,  that  parties,  severally  liable,  under  different  con- 
tracts, were  jointly  sued,  fell  under  the  head  of  insufficiency,  as 
against  the  defendants,  in  the  form  in  which  they  were  sued,  not 
under  those  of  misjoinder,  or  of  defect  of  parties,  and  therefore, 
that  such  objection  was  not  waived  by  the  omission  to  demur. 
This  case  seems,  however,  adverse  to  those  next  cited,  and 
also  to  White  v.  Low,  7  Barb.  204,  and  Montgomery  County 
Bank  v.  Albany  City  Bank,  8  Barb.  896. 

In  lngraham  v.  Baldwin,  12  Barb.  9,  it  was  held  that  the  ob- 
jection of  the  improper  joinder  of  parties  plaintiffs,  will  be 
waived  by  an  omission  to  demur. 

In  King  v.  Vanderbilt,  7  How.  385,  it  was  likewise  held,  that 
the  nonjoinder  of  defendants  was  waived  by  such  an  omission. 
See  also  Gardner  v.  Clark,  6  How.  449,  in  relation  to  the  waiver 
of  a  plea  in  abatement,  by  answering  to  the  merits.  See  like- 
wise Howland  v.  Fort  Edward  Paper  Mill  Company,  8  How.  505  ; 
Tripp  v.  Riley,  15  Barb.  388  ;  Dennison  v.  Dennison,  9  How.  246. 

§  1 50.  Demurrer  and  Answer,  how  far  admissible  in  con- 
nection. 

By  sec.  151,  it  is  provided  that  "the  defendant  may  demur 
to  one  or  more  of  several  causes  of  action  stated  in  the  com- 
plaint, and  answer  the  residue."  This  provision  was  not  in  the 
Code- of  1848,  and,  accordingly,  the  case  of  Manchester  v.  /Storrs, 
3  How.  401,  which  held  that  a  demurrer  could  only  be  inter- 
posed to  the  entire  complaint,  is  no  longer  applicable  to  the 
existing  practice. 

The  question  as  to  how  far  a  defendant  may  both  demur  and 
answer  to  the  same  ground  of  complaint,  has  been  the  subject 
of  contradictory  decisions.  The  cases  of  The  People  ex  rel.  Fal- 
30 


466  DEMURRER. 

coner  v.  Meyer,  2  C.  R,  49,  and  Gilbert  v.  Davies,  2  C.  R.  50,  are 
authority  in  favor  of  his  right  to  do  so ;  but,  in  Shewn  v. 
Wheeler,  4  How.  373,  it  was  held,  on  the  other  hand,  that  a  de- 
fendant cannot  both  demur  and  answer,  at  the  same  time,  to  a 
single  cause  of  action,  and  the  two  last  cases  are  both  com- 
mented upon  and  formally  overruled.  In  Spellman  v.  Wieder, 
5  How.  5,  the  same  doctrine  was  positively  held,  and  the 
authority  of  Slocum  v.  Wheeler  confirmed  in  terms,  in  a  case 
where  the  defendants  had  both  demurred  and  answered  to  the 
whole  complaint.     A  like  decision  was  come  to  in  Cobb  v.  Frazee, 

4  How.  413,  3  C.  R.  43,  (a  demurrer  to  answer,)  where  it  was 
held  that  demurrer  will  not  lie  to  part  of  an  entire  defence. 
The  plaintiff  had,  in  that  case,  selected  from  the  answer  several 
sentences,  forming  a  part  of  one  entire  ground  of  defence,  and 
demurred  thereto,  replying  to  the  residue,  under  which  circum- 
stances his  demurrer  was  overruled.  Similar  views  were  laid 
down  in  Howard  v.  The  Michigan  Southern  Railroad  Company, 

5  How.  206,  3  C.  R.  213,  where  the  defendant  had  both  de- 
murred and  answered  to  the  complaint ;  but  it  was  held  that 
the  plaintiff  could  not  treat  such  pleading  as  a  nullity,  or  move 
for  judgment;  but  should  move  to  strike  out  the  answer  and 
demurrer,  or  that  the  defendant  elect  by  which  he  will  abide: 
and  the  like  doctrine  is  implied  in  Clark  v.  Van  Deusen,  3  C.  R. 
219.  It  is  also  reasserted  in  the  most  positive  terms,  and  the 
authority  of  Slocum  v.  Wheeler,  Spellman  v.  Wieder,  and  Cobb  v. 
Frazee,  fully  confirmed,  in  the  more  recent  case  of  Ingraham  v. 
Baldwin,  12  Barb.  9,  and  the  point  may  therefore  be  looked 
upon  as  settled  accordingly. 

Where,  however,  the  causes  of  action  in  a  complaint,  or  the 
defences  in  an  answer,  are  separately  stated,  in  compliance  with 
the  directions  to  that  effect  in  sees.  167  and  150,  there  can  be 
no  doubt  that  the  opposing  party  may  both  demur,  and  also 
answer  <>r  reply  by  the  same  pleading:  provided  he  does  not 
do  both  to  the  same  ground  of  action  or  defence,  but  separates, 
on  the  contrary,  his  objections  or  answers  l<>  his  adversary's 
pleading,  int..  distinct  classes,  in  the  same  manner  in  which  the 
undfl  of  action  or  defence  in  that  pleading  have  been  sepa- 
rate!. 

§  If) I.    Frivolous  Demurrer. 

Demurrer,  with  all  its  advantages,  is,  however,  a  proceeding 


DEMURRER.  467 

attended  with  some  risk,  as,  if  it  be  adjudged  to  be  clearly  fri- 
volous, and  to  have  been  put  in  for  the  purposes  of  delay,  leave 
to  answer  may  be,  and  has  been,  in  many  cases,  refused. 

A  demurrer  for  misjoinder  of  both  husband  and  wife  as  par- 
ties, in  a  case  where  it  appeared  that  both  had  actual,  though 
different  interests,  in  the  subject  -  matter  of  the  action,  was 
accordingly  stricken  out  as  frivolous,  aud  judgment  given  for 
the  plaintiff,  in  Concle  v.  Skepqrd,  4  How.  75;  2  C.  R  58,  (as 
Conde  v.  Nelson.) 

A  demurrer  on  the  ground  that  profert  of  his  letters  of  admin- 
istration was  not  made  by  an  administrator  suing  as  such,  was 
stricken  out  as  frivolous,  in  Bright  v.  Currie,  5  Sandf.  433,  10 
L.  0.  104.      See  also,  Welles  v.  Webster,  9  How.  251. 

In  an  action  brought  by  a  bank,  on  a  note  payable  to  the 
order  of  their  cashier,  a  demurrer  that  such  action  was  not 
brought  by  the  proper  party  having  been  taken,  it  was  held 
that  the  plaintiffs  were  entitled  to  judgment,  on  account  of  its 
frivolousness,  though  leave  was  given  to  the  defendants  to 
answer  on  terms.  The  Camden  Bank  v.  Rodyers,  4  How.  G3 ; 
2  C.  R  45. 

Where  the  plaintiffs  sued  in  a  corporate  name,  a  demurrer  on 
the  ground  that  the  complaint  contained  no  averment  that  they 
sued  as  a  corporation,  was  adjudged  frivolous,  but  leave  given 
to  defend,  on  service  of  an  affidavit  of  merits.  The  Union 
Mutual  Insurance  Company  v.  Osgood,  1  Duer,  707. 

An  omission  to  aver  a  default  in  the  purchaser  of  goods 
intrusted  to  a  commission  merchant  for  sale  and  collection,  in 
an  action  against  the  latter,  on  his  guaranty,  was  held  not  to 
be  a  ground  of  demurrer,  the  complaint  averring  that  the 
amount  was  due  from  him.     Millihen  v.  Byerly,  6  How.  214. 

A  demurrer  that  the  complaint  in  an  action  for  goods  sold 
and  delivered,  did  not  state  any  legal  liability,  or  any  promise 
to  pay,  was  in  like  manner  held  to  be  frivolous,  and  judgment 
given  for  the  plaintiff,  in  Olenny  v.  Ilitchins,  4  How.  98 ;  2  C. 
R56. 

In  Appleby  v.  Elkins,  3  Sandf.  673,  2  C.  E.  80,  where  the 
.  complaint  stated  the  making,  endorsement,  and  delivery  of  a 
promissory  note  to  the  plaintiff,  the  non-payment  thereof  when 
due,  and  the  defendant's  indebtedness — a  demurrer  that  the 
complaint  did  not  show  the  plaintiff  to  be  owner,  or  that  the 
note  was  due,  was  stricken  out  as  frivolous,  and  leave  to  answer 


468  DEMURRER. 

denied,  there  being  no  affidavit  of  merits.  An  omission  to  aver 
the  fact  of  due  protestation,  in  an  action  by  endorsee  against 
endorser,  is,  on  the  contrar}',  a  demurrable  defect.  Turner  v. 
Comstock,  1  C.  K.  102;  7  L.  O.  23. 

In  Beach  v.  Gallup,  2  C.  E.  66,  where  the  complaint  alleged 
the  plaintiffs  to  be  holders  of  the  note  sued  on,  but  did  not  aver 
ownership,  or  facts  amounting  thereto,  a  demurrer  on  the  latter 
ground  was  refused  to  be  stricken  out;  but,  in  the  recent  case 
of  Taylor  v.  Corbiere,  8  How.  385,  the  doctrine  in  Beach  v.  Gal- 
lup is  disapproved,  and  that  of  Appleby  v.  Elkins  confirmed. 
The  latter  may  therefore  be  considered  as  the  settled  practice. 

In  Radway  v.  Mather,  5  Sandf.  654,  a  demurrer  on  the  ground 
that  the  necessary  allegations  of  presentment  and  notice  were 
made  on  belief  only,  and  not  on  information,  was  declared  fri- 
volous, both  on  the  objection  itself,  and  also  because,  if  that 
objection  had  any  force,  it  was  not  proper  to  be  raised  on 
demurrer. 

It  is  only,  however,  in  gross  cases,  that  the  court  will  feel 
disposed  to  exercise  their  summary  power  in  the  above  respect. 
Thus,  in  Nee/us  v.  Kloppenburgh,  2  C.  E.  76,  a  demurrer  to  a 
complaint,  alleging  that  "the  defendant  was  indebted"  to  the 
plaintiff  on  an  account  for  goods  sold  and  delivered,  on  the 
ground  that  the  conclusion  of  law,  and  not  the  facts,  were 
pleaded,  was  likewise  refused  to  be  stricken  out,  and  the 
general  principle  laid  down,  that  it  was  only  in  cases  where 
the  demurrer  was  palpably  groundless  and  untenable,  and  put 
in  for  the  purposes  of  vexation  and  delay,  that  the  court  would- 
exercise  the  power  of  expunging  it  from  the  record. 

Similar  principles  are  laid  down  in  Rae  v.  The  Washington 
Mutual  Insurance  Company,  6  How.  21,  1  C.  E.  (N.  S.)  185, 
where  it  was  held  that,  to  warrant  a  judgment  on  a  frivolous 
demurrer,  "the  case  should  be  entirely  clear,  palpable  on  the 
statement  of  the  facts,  and  requiring  no  argument  to  make  it 
apparent;"  and  a  motion  to  strike  out  a  demurrer  to  the  reply 
was  accordingly  denied,  the  questions  raised  being  real  and 
important. 

[£  any  portion  of  the  demurrer  be  sustainable,  the  insertion 
of  redundant  or  immaterial  matter  will  not  render  it  impeach- 
able as  a  pleading,  aor,  it  would  seem,  will  such  matter  be  even 
stricken  out.     Smith  v.  Jirown,  6  How.  383. 


ANSWER.  4g9 

§  152.  Concluding  Remarks. 

Forms  and  Formal  Proceedings.'] — For  form  of  demurrer,  see 
Appendix. 

This  pleading  requires  no  verification.  It  should,  however, 
be  signed  by  the  attorney  or  ..counsel  of  the  defendant,  and  a 
copy  served  upon-  the  adverse  party,  in  the  usual  manner. 

Demurrer  by  Answer.'] — The  subject  of  demurrer  by  answer, 
so  far  as  relates  to  any  independent  considerations  in  relation 
thereto,  will  be  treated  of  in  a  succeeding  chapter. 


CHAPTER     IV. 

ANSWER. 


§  153.   Office  and  Requisites  of  Answer. 

The  office  of  this  most  important  pleading  is,  to  present  the 
case  of  the  defendant,  in  opposition  to  that  attempted  to  be 
made  out  by  the  plaintiff,  upon  the  facts  of  the  case  alone,  or 
upon  the  law  and  the  facts  conjointly,  according  to  the  circum- 
stances. It  is,  accordingly,  the  form  of  defence  most  usually 
adopted. 

The  requisites  of  Answer  are  thus  prescribed  by  the  Code, 
in  sees.  149  and  150: 

§  149.   The  answer  of  the  defendant  must  contain, 

1.  A  general  or  specific  denial  of  each  material  allegation  of  the 
complaint,  controverted  by  the  defendant,  or  of  any  knowledge  or  in- 
formation thereof  sufficient  to  form  a  belief. 

2.  A  statement  of  any  new  matter,  constituting  a  defence  or  counter- 
claim, in  ordinary  and  concise  language,  without  repetition. 

§  150.  The  counter-claim  mentioned  in  the  last  section,  must  be  one 
existing  in  favor  of  a  defendant,  and  against  a  plaintiff,  between  whom 
a  several  judgment  might  be  had  in  the  action,  and  arising  out  of  one 
of  the  following  causes  of  action  : 

1.  A  cause  of  action,  arising  out  of  the  contract  or  transaction  set 
forth  in  the  complaint  as  the  foundation  of  the  plaintiff's  claim,  or  con- 
nected with  the  subject  of  the  action. 


470  ANSWER. 

2.  Id  an  action  arising  on  contract,  any  other  cause  of  action  arising 
also  on  contract,  and  existing  at  the  commencement  of  the  action. 

The  defendant  may  set  forth,  by  answer,  as  many  defences  and 
counter-claims  as  he  may  have,  whether  they  be  such  as  have  been 
heretofore  denominated  legal  or  equitable,  or  both.  They  must  each 
be  separately  stated,  and  refer  to  the  causes  of  action  which  they  are 
intended  to  answer,  in  such  manner  tnat  th-&y,majr  be  intelligibly  dis- 
tinguished. 

These  sections  have  been  altered  in  several  most  important 
particulars,  upon  the  recent  amendment.  The  power  of  making 
a  general  as  well  as  a  specific  denial  of  the  plaintiff's  allega- 
tions, existent  under  the  Codes  of  1848  aH3^L849,  but  abolished 
by  that  of  1851,  is  again  restored;  the  power  of  joining  legal 
and  equitable  defences  in  the  same  pleading,  which  had  been, 
to  some  extent,  a  subject  of  doubt,  is  now  expressly  declared ; 
and  special  provisions  are  made  on  the  subject  of  counter- 
claim, the  substituted  definition  for  the  formerly  established 
term  of  set-off,  which  were  not  in  the  former  measures.  The 
phraseology  of  the  sections  is  likewise  altered  in  several  com- 
paratively unimportant  particulars.  The  different  cases  bear- 
ing on  the  above  subjects,  will  be  cited  in  the  course  of  the 
chapter. 

The  defendant  has  four  courses  open  to  him  by  means  of  an 
answer,  when  put  in,  any  one  or  more  of  which  he  may  adopt 
at  his  election,  or  all,  if  the  circumstances  admit. 

1.  He  may  demur  to  the  complaint  for  defects  in  law,  latent 
in  that  pleading  itself,  but  made  patent  by  statements  contained 
in  the  answer. 

2.  lie  may  put  the  plaintiff  to  proof  of  his  case,  by  traversing 
the  facts  alleged. 

3.  lie  may  present  new  matter,  wholly  or  partially  avoiding 
tip'  plaintiff's  claim. 

•1.  11>-  ni;i\  seek  to  establish  a  counter-claim,  either  wholly  or 
partially  extinguishing  the  plaintiff's  demand:  which  subjects 
will  accordingly  be  treated  of  in  the  above  order. 

In  certain  cases  a  supplemental  answer  will  be  necessary, 
and,  as  such,  allowable.  See  tin1  subject  hereafter  fully  con- 
sidered in  the  corn-biding  eleipter  el'  the  present  book,  under  the 
bead  of  Revivor.  See,  also,  Drought  v.  Curtis*,  8  How.  56t 
there  cited. 


ANSWER.  471 

§  154.  Preliminary  Considerations. 

What  may  be  an  Answer.'] — The  following  general  considera- 
tions, however,  demand  notice  in  the  first  instance.  In  Didier 
v.  Warner,  1  C.  E.  42,  it  was  laid  down  that  a  mere  memorandum 
endorsed  on  the  complaint,  might  possibly,  in  some  cases,  be 
held  to  be  a  sufficient  answer.  It  is  obvious,  however,  that  the 
case  is  one  "  sui  generis"  and  not  a  precedent  to  be  followed 
under  any  circumstances. 

Objections  not  sustainable  by  Answer.] — Objections  on  the 
ground  of  irregular  service  of  process,  can  neither  be  taken  by 
answer  nor  demurrer ;  the  only  course  open  in  such  cases,  is  a 
motion  to  set  aside  such  service  for  irregularity.  See  Nones  v. 
Hope  Mutual  Insurance  Company,  5  How.  96,  3  C.  E.  161,  8 
Barb.  541 ;  Bridge  v.  Payson,  1  Duer,  614. 

Verification  and  other  Formalities.] — This  question  has  already 
been  fully  considered,  and  the  cases  in  point  cited,  under  the 
general  head  of  Formal  Eequisites  of  Pleading.  It  may,  how- 
ever, be  convenient  to  allude  to  one  or  two  of  them  in  this 
place,  as  more  peculiarly  applicable  to  this  form  of  pleading. 

Where  two  parties,  severally  interested,  put  in  a  joint  answer, 
it  must  be  verified  by  both,  or  it  will  be  a  nullity  as  to  the 
party  who  omits  to  verify.     Andrews  v.  Stonns,  5  Sandf.  609. 

The  statutory  form  of  affidavit  relieves  the  defendant  from 
the  necessity  of  distinguishing  in  the  answer,  what  he  states  on 
knowledge,  and  what  on  belief,  and  imposes  on  him  the  neces- 
sity of  making  his  allegations  positive  in  all  cases.  Truscott  v. 
Dole,  7  How.  221;  Hackett  v.  Richards,  11  L.  0.  815. 

Where  the  verification  in  the  complaint  is  manifestly  defect- 
ive, it  relieves  the  defendant  from  the  necessity  of  verifying 
his  answer  at  all.  Waggoner  v .  Brown,  8  How.  212;  see  like- 
wise Lane  v.  Morse,  6  How.  394.  This  course  of  proceeding, 
though  admissible  in  a  clear  case,  is  somewhat  hazardous  in 
those  in  which  any  doubt  exists.  See  this  subject  heretofore 
considered,  and  cases  in  point  cited,  in  the  chapter  last  alluded  to. 

In  the  same  chapter,  the  provision  to  the  effect  that  a  party 
may  decline  to  verify  his  answer  at  all,  in  those  cases  where 
such  verification  might  subject  him  to  a  criminal  proceeding; 
will  be  also  found  fully  considered,  and  the  cases  cited. 


472  ANSWER. 

The  questions  as  to  the  mode  of  service,  the  effect  of  an  amend- 
ment of  an  answer,  and  the  other  formal  proceedings  connected 
therewith,  have  also  been  previously  considered.  It  will  be 
remembered  that,  by  service  of  an  answer,  all  objections  to  the 
complaint  for  structural  defects  are  positively  waived.  Ooch  v. 
Marsh,  8  How.  439. 

Answer,  and  demurrer  proper,  are  two  separate  pleadings, 
and,  though  they  may  be  made  out  on  one  paper,  and  in  con- 
nected form,  they  do  not  lose  their  distinctive  character. 
Where,  therefore,  the  defendant  had  thus  framed  his  defence, 
and  afterwards  amended  his  pleading,  by  striking  out  a  general 
demurrer  subjoined  to  his  answer,  leaving  the  latter  unim- 
paired, as  far  as  regarded  the  issue  of  fact  tendered  by  it;  it 
was  held  that  this  was  nothing  more  than  service  of  a  second 
copy  of  the  original  answer,  and  that  a  second  reply  was  not 
requisite.  Howard  v.  The  Michigan  Southern  Railroad  Company, 
5  How.  206;  8  0.  R.  213. 

The  provision  of  Rule  87,  that,  in  all  cases  where  more  than 
one  distinct  defence  is  set  up,  they  must  not  only  be  separately 
stated,  but  plainly  numbered,  must  be  borne  in  mind  in  the 
framing  of  answers,  of  whatever  nature. 

Relief  as  between  Co- Defendants^ — The  answer  must  be  directed 
to  meet  the  plaintiff's  case  only ;  and  all  matter,  solely  relating 
to  the  adjustment  of  controversies  between  co-defendants,  is 
immaterial,  as  regards  the  case  of  the  plaintiff,  and,  if  its  effect 
be  to  delay  or  prejudice  the  latter,  it  will  be  stricken  out 
on  his  application.  Thus,  where  the  answer  stated  no  facts 
amounting  to  a  defence  as  against  the  plaintiff,  but  was  solely 
directed  to  the  adjudication  of  equities  as  between  co-defend- 
ants, the  whole  was  stricken  out,  and  judgment  ordered  for  the 
plaintiff.      Woodworth  v.  Bellows,  4  How.  24  ;  1  C.  R.  129. 

This  rule  is,  however,  inapplicable  to  proceedings  in  parti- 
tion. Thus,  in  Bogardus  v.  Parker,  7  How.  305,  it  was  held 
that  the  mutual  claims  of  co-defendants  may  be  tried  and  set- 
tled in  a  suit  of  this  nature,  provided  they  involve  interests  in, 
or  liens  on  the  property  sought  to  be  partitioned. 

Oa  i  removed  from  Justice's  Court.] — In  an  action  removed 
from  a  justice's  court,  under  the  provisions  of  sections  56  to  61 
of  the  Oode,  inclusive,  on  the  ground  of  the  title  to  real  estate 
being  in  question,  the  answer  in  the  court  above  must  set  up 
the  same  defence.     Considerable  discussion  has  arisen  on  this 


ANSWER.  473 

subject,  and  as  to  whether  the  defendant  is  not  bound,  in  these 
cases,  to  put  in  the  same  answer  in  form,  as  well  as  in  sub- 
stance; and  also,  whether  it  is  competent  for  the  plaintiff  to 
reply  to  such  answer.  See  chapter  on  the  jurisdiction  of  jus- 
tices' courts,  and  the  cases  of  McNamara  v.  Bitely,  4  How.  44, 
and  Cusson  v.  Whabn,  5  How.  302;  1  C.  E.  (N.  S.)  27,  there 
cited.  In  Wendell  v.  Mitchell,  however,  5  How.  424,  it  was  held 
that  answers  of  this  description  were  amendable,  on  points  of 
form  ;  and  the  more  recent  decisions  of  Jewett  v.  Jewett,  6  How. 
185,  and  Kiddle  v.  De  Groot,  1  C  K.  (N.  S.)  202,  272,  established 
that  both  an  answer,  and  a  reply,  may  be  put  in  in  these  cases, 
in  the  usual  manner,  and  without  any  other  restriction  than 
that  of  setting  up  the  same  defence  in  the  former,  as  that  in  the 
justices'  court. 

The  latter  view  has  since  been  confirmed,  and  the  law  on 
this  point  settled  by  the  Court  of  Appeals,  in  Wiggins  v.  Tall- 
madge,  7  How.  404,  which  holds  that  the  defendant  is  not 
required  to  use  the  identical  words  in  his  second  answer,  but 
only  to  make  the  same  substantive  defence,  and,  likewise,  that 
he  is  at  liberty  to  abandon  part  of  that  defence,  if  so  advised, 
provided  he  does  not  alter  the  remainder  by  which  he  abides. 

Answer  by  Joint  Debtors,  &c.~\ — In  cases  where  judgment  has 
been  taken  against  several  joint  defendants,  on  service  of  pro- 
cess against  one  only,  under  the  provisions  of  chapter  II.  of 
title  XII.  of  the  Code,  before  and  hereinafter  referred  to;  and 
where  the  plaintiff  subsequently  takes  out  a  summons  against 
the  defendants  not  served,  to  show  cause  why  they  should  not 
be  bound  by  such  judgment,  under  the  enabling  provisions  of 
the  chapter  in  question  :  the  defendants  so  summoned,  may  put 
in  an  answer  in  the  usual  form,  and  the  matter,  if  defended, 
becomes  in  fact  a  regular  action  in  all  its  parts,  from  the  service 
of  such  summons,  with  this  single  exception,  that  the  Statute  of 
Limitations  cannot  be  pleaded.     See  sec.  379. 

In  the  analogous  proceeding,  given  by  sec.  376  of  the  same 
chapter,  as  against  the  heirs,  devisees,  or  legatees  of  a  judg- 
ment debtor,  dying  after  judgment,  or  as  against  his  personal 
representatives,  or  the  tenants  of  real  property  owned  by  him 
and  affected  by  such  judgment,  the  power  of  defence  is  much 
more  limited.  Parties  standing  in  this  situation,  are  precluded 
from  making  any  of  the  ordinary  defences;  the  only  lines  open 


474  ANSWER. 

to  them  being,  either  denial  of  the  judgment  itself,  or  subse- 
quently arisen  matter,  in  bar  of  the  plaintiff's  right  to  relief 
under  it.  If  neither  of  these  points  can  be  raised,  it  will  be 
useless  to  contest  the  claim,  or  to  put  in  any  answer  at  all. 

§  155.  Demurrer  by  Answer. 

The  subject  of  demurrer  to  part  of  a  pleading,  and  answer  to 
the  residue,  has  already  been  treated  of,  and  the  cases  cited,  in 
the  last  chapter. 

The  law  on  the  subject  of  demurrer  by  answer  is,  in  sub- 
stance, the  same  as  that  contained  in  the  last  chapter.  It  would 
seem,  from  Clark  v.  Van  Deusen,  3  C.  K.  219,  that,  in  order  to 
sustain  this  line  of  defence,  the  complaint,  or  portion  of  the 
complaint,  so  objected  to,  must  be  admitted;  and  not  traversed, 
so  as  to  create  an  issue  of  fact,  on  the  same  point  on  which  the 
demurrer  is  taken.  This  would,  indeed,  be  to  put  in  both  de- 
murrer and  answer  to  the  same  cause  of  action,  which,  as  shown 
in  the  last  chapter,  is  not  admissible.  The  only  difference  be- 
tween demurrer  proper  and  demurrer  by  answer,  is  in  the  form 
of  the  latter,  by  which,  the  facts  necessary  to  show  the  exist- 
ence of  the  objection  so  taken,  must  be  averred  in  the  usual 
mode,  the  grounds  of  demurrer  arising  on  those  facts  being 
subjoined,  in  the  usual  forms  of  expression.  In  relation  to  the 
necessity  of  admitting  the  facts  of  the  plaintiff's  case,  on  raising 
an  issue  of  law,  see  Hall  v.  Bartletl,  9  Barb.  297,  before  cited ; 
see,  too,  the  same  general  principle  laid  down,  with  reference  to 
the  incompatibility  of  a  plea  in  abatement,  or  in  bar,  with  an 
answer  on  the  merits,  in  Gardner  v.  Clark,  6  How.  449. 

The  general  nature  and  form  of  demurrer  by  answer  is  thus 
laid  down  in  Hornfager  v.  Hornfager,  G  How.  279;  1  C.  E. 
( X.  S.)  112  :  "  When  it  appears  by  the  complaint,  that  there  is 
another  actios  pending  between  the  same  parties  for  the  same 
cause,  the  remedy  is  by  demurrer.  When  any  of  the  matters 
enumerated  in  section  111,  do  not  appear  upon  the  face  of  the 
complaint,  the  objection  may  be  taken  by  answer."  A  motion 
having  been  made  in  thatcase,  to  set  aside  the  proceedings  in  an 
action  for  partition  commenced  by  the  defendant,  on  the  ground 
that  a  similar  action  bad  been  previously  commenced  by  the 
plaintiff;  it  was  held  that  "  the  remedy  was  to  set  forth,  by 
answer  in  the  Buii  la. -i,  •  ■1,ininrnoed,  the  pendency  of  the  prior 
proceeding." 


ANSWER.  475 

A  similar  view  as  to  demurrer  by  answer  being  the  proper 
mode  of  taking  an  objection  for  want  of  proper  parties,  is  taken 
in  Ripple  v.  Gilborn,  8  How.  456.  An  objection  of  this  nature, 
on  the  ground  of  misjoinder,  will  be  waived,  by  omitting  to 
take  it  by  way  of  demurrer,  in  the  one  or  the  other  form.  Ingra- 
ham  v.  Baldwin.  12  Barb.  9.  See,  likewise,  as  to  nonjoinder, 
Tripp  v.  Riley,  15  Barb.  333.  An  objection,  which  goes  to  the 
ground  of  the  complaint,  will  not,  however,  be  waived  by  such 
an  omission.  Ludington  v.  Taft,  10  Barb.  447.  See  before, 
under  the  head  of  Demurrer. 

The  objection  of  jurisdiction,  when  taken  by  answer,  must 
show,  affirmatively,  that  the  court  had  no  jurisdiction  when  the 
suit  was  commenced,  or  it  will  be  overruled  on  demurrer  by 
the  plaintiff.    Bridge  v.  Payson,  1  Duer,  614. 

In  The  Union  Mutual  Insurance  Company  v.  Osgood,  1  Duer, 
707,  a  demurrer,  on  the  ground  of  want  of  a  legal  capacity  to 
sue  on  the  part  of  the  plaintiff,  was  held  to  be  frivolous,  the 
objection  not  being  apparent  on  the  face  of  the  complaint,  and 
demurrer  by  answer  was  held  to  be  the  only  admissible  course 
under  these  circumstances. 

The  misnomer  of  defendants  is  an  objection  which  cannot 
properly  be  taken  by  answer ;  motion  will  be  the  proper  course. 
Elliott  v.  Hart,  7  How.  25. 

In  replevin,  brought  by  alleged  joint  owners  of  property,  an 
averment  that  such  parties  were  not  joint  owners,  as  alleged, 
was  held  to  be  material,  and  to  require  a  reply.  Walrod  v.  Ben- 
nett, 6  Barb.  144.  Of  an  analogous  nature  is  the  case  of  Corning 
v.  Haighi,  1  C.  E.  72,  where  an  answer,  simply  denying  copart- 
nership with  the  other  defendants,  was  held  to  be  a  sufficient 
defence,  to  a  complaint,  for  goods  sold  and  delivered  to  all  of 
such  defendants  "partners  in  business." 

Where  the  complaint  against  the  endorsers  of  a  promissory 
note  was  framed  according  to  the  recent  amendments,  merely 
giving  a  copy  of  that  instrument,  and  omitting  any  allegations 
of  transfer,  delivery,  or  ownership  of  the  plaintiffs,  a  demurrer 
by  answer,  on  the  ground  of  the  omission  of  those  allegations, 
was  refused  to  be  stricken  out  as  frivolous.  Lord  v.  Cheese- 
borough,  4  Sandf.  696 ;  ICE.  (N.  S.)  322. 

In  Humphreys  v.  Chamberlain,  1  C.  E.  (N.  S.)  387,  it  was  held, 
that  demurrer  by  answer  was  the  only  proper  form  of  raising 
an  objection,  on  the  ground  that  the  contract  there  sued  upon 


476  ANSWER. 

was  void  by  the  laws  of  the  State  in  which  it  was  made,  and 
that  such  question  could  not  be  raised  by  demurrer  proper, 
inasmuch  as  the  courts  of  this  State  are  not  presumed  to  have 
judicial  acquaintance  with  foreign  statutes,  but  the  contents  of 
such  statutes  are  matters  of  evidence,  which  must  be  alleged, 
and  put  in  proof  as  such. 

A  form  of  demurrer  by  answer  is  given  in  the  Appendix.  It 
will,  however,  vary  in  various  cases.  When  taken  on  the 
ground  of  a  defect  in  parties,  the  names  of  the  parties  omitted 
to  be  joined  must  be  given,  in  order  that  the  plaintiff  may  be 
enabled  to  amend  his  complaint,  if  so  advised. 

The  defendant  must,  however,  be  careful  not  to  trust  to  his 
answer,  for  the  purpose  of  raising  demurrable  objections,  when 
those  objections  can  be  raised  by  demurrer  proper.  Where 
the  averments  of  the  complaint  are,  on  the  face  of  it,  insuffi- 
cient, the  point  cannot  be  raised  by  answer,  simply  taking  the 
objection,  and  averring  no  facts  in  defence.  Hoxie  v.  Cushman, 
7  L.  0.  149. 

§  156.    Traverse  of  Plaintiff's  Case. 

General  Principles.'] — The  next  head  above  laid  down,  was 
the  power  possessed  by  the  defendant,  of  putting  the  plaintiff 
to  proof  of  his  case,  by  traversing  the  facts  averred  in  the 
complaint.  This  precaution  must,  in  fact,  be  taken  in  all  cases, 
whether  new  matter  be  set  up  in  the  answer  or  not.  If  neg- 
lected, every  allegation  omitted  to  be  traversed  will,  under  sec. 
168,  be  taken  as  true,  and  cannot  afterwards  be  controverted. 
See  Tracy  v.  Humphrey,  below  cited  ;  see,  also,  Walrod  v.  Bennett, 
6  Barb.  144,  which  establishes  this  last  doctrine;  and  also,  that 
evidence  cannot  be  given  at  the  trial,  for  the  purpose  of  con- 
tradicting an  allegation  thus  admitted,  or,  rather,  omitted  to  be 
denied  on  the  pleadings.  See,  per  contra,  similar  principles 
laid  down,  in  reference  to  the  omission  of  necessary  allegations 
on  the  part  of  the  plaintiff,  in  Bristol  v.  Rensselaer  and  Saratoga 
Railroad  Company,  9  Barb.  L58;  and  see  the  subject  of  the  re- 
striction of  proof,  secundum  <ill<<i<ti<t,  heretofore  considered,  un- 
der the  heads  <>f  <  !omphiint,  and  General  Principles  of  Pleading. 

By  the  amendment  of  L851,  a  most  important  change  was 
temporarily  made,  in  relation  to  allegations  traversing  the 
plaintiff's  case.     Under  the  measures  of  1848  and  .1819,  a  ge- 


ANSWER.  477 

neral  or  specific  denial  of  the  statements  in  the  complaint  was 
admissible ;  the  Code  of  1851  prescribed  a  specific  denial  in  all 
cases,  rendering  it  necessary  to  traverse  every  allegation  seria- 
tim, and  verbatim  also  in  most  cases.  It  was  accordingly  held  in 
Rosenthal  v.  Brush,  1  C.  R  (N.  S.)  228,  and  Seward  v.  Miller,  6 
How.  312,  that  a  general  denial,  however  sweeping  or  emphatic, 
was  bad  ;  and  that  every  material  allegation  in  the  complaint 
must  be  specifically,  and  in  terms,  denied  by  the  answer.  See, 
also,  Kettletas  v.  Maybee,  1  C.  E.  (N.  S.)  363.  The  inconveni- 
ences of  this  strict  rule  being  manifest,  it  will  be  seen  that,  by 
the  last  amendment,  the  old  phraseology  is  restored,  and  that  a 
"  general  or  specific  denial"  is  again  admissible  in  all  cases. 

In  almost  every  case,  except  those  in  which  the  defendant 
really  has  no  defence,  and  knows  it,  it  will  be  found  easy  to 
frame  a  traverse  of  the  plaintiff's  case  in  general,  by  denying 
the  allegations  sought  to  be  controverted,  on  "knowledge,  in- 
formation, or  belief,"  or  by  denying  any  "knowledge  or  infor- 
mation" of  those  allegations  "sufficient  to  form  a  belief,"  as 
provided  by  sec.  149.  This  phraseology  gives  the  utmost 
license  to  the  defendant  in  this  respect,  under  any  circum- 
stances where  such  traverse  is  not  grossly  improper,  and  con- 
trary to  good  faith.  Even  where  responsive  matter  is  pleaded, 
the  defendant,  as  before  remarked,  should  also  traverse  the 
plaintiff's  case,  unless  his  defence  be  consistent  with  a  total  or 
partial  admission  of  it,  as  stated  in  the  complaint.  He  should 
also  be  careful  to  do  so  in  the  very  words  of  the  complaint  it- 
self, as  regards  every  material  allegation.  It  is  impossible  to 
be  too  particular  in  complying  with  this  last  requisite.  If 
strictly  observed,  no  question  can  afterwards  arise  as  to  whether 
such  allegations  have,  or  have  not  been  admitted,  by  non-denial 
in  the  answer;  if  not,  any  omission  to  deny,  unobserved  at  the 
time,  may  possibly  lead  to  serious  results  at  the  hearing.  See 
Walrod  v.  Bennett,  6  Barb.  14-4,  before  cited. 

Benedict  v.  Seymour,  6  How.  298,  contains  a  long  and  subtle 
disquisition  on  the  subject  of  defences,  and  the  mode  in  which 
they  should  be  framed  under  the  Code;  the  necessity  of  stating 
every  separate  defence  in  a  separate  and  distinct  form  being 
strongly  insisted  on,  in  analogy  to  the  principles  thereby  laid 
down  in  reference  to  complaint  also.  See  citation  of  the  case 
under  that  head.  The  observations  which  there  follow,  are  in 
reference  to  a  strictly  legal  action,  and  are  stated  as  not  having 


478  ANSWER. 

any  bearing  upon  those  which  are  equitable  in  their  nature.  In 
reference  to  the  former,  it  was  there  considered  that  it  is  not 
competent  for  a  defendant,  first  to  traverse,  and  then  to  state 
matter  in  disproof  of  an  allegation  of  the  plaintiff;  and  that 
matter  of  the  latter  description  ought,  if  so  pleaded,  to  be 
stricken  out.  The  views  on  this  subject  are  most  strictly  laid 
down,  and  their  result  stated  as  follows :  "  Whenever  an  an- 
swer contains  a  traverse  or  denial  of  any  one  or  more  of  the 
material  allegations  of  the  complaint,  every  thing  else  which  it 
may  contain,  whatever  it  may  be,  is  redundant,  and  must  be 
stricken  out  on  motion,  unless  it  belongs  to  a  separate  and  dis- 
tinct defence."  The  views  so  stated  appear  to  be  mainly  based 
upon  the  fact  that,  on  a  general  traverse  of  the  plaintiff's  case, 
any  matter  in  disproof  is  admissible  in  evidence ;  but,  if  car- 
ried beyond  this,  they  seem  open  to  doubt. 

What  will  be  sufficient.'] — In  Kellogg  v.  Church,  4  How.  339, 
it  was  held  that  an  answer,  simply  denying  "  each  and  every 
allegation  alleged  in  the  plaintiff's  complaint,"  would  do.  This 
case,  which  was  no  longer  of  authority  under  the  Code  of  1851, 
has  again  become  so,  under  the  recent  amendments.  A  specific 
denial  to  each  specific  allegation,  will,  however,  be  by  far  the 
inost  expedient  form,  in  most,  if  not  in  all  cases. 

Where  the  allegation  in  the  complaint  was,  "that  the  de- 
fendant "  was  indebted  to  the  plaintiff,"  in  a  certain  sum,  on  a 
settled  account;  an  answer  that  the  defendant  "  was  not  indebt- 
ed as  stated  in  the  complaint,"  was  sustained,  inasmuch  as  the 
complaint  stated  indebtedness  as  a  fact,  and  not  as  a  conclusion 
of  law.  A  nun.,  2  C.  R.  67.  As  a  general  rule,  however,  the 
denial  of  a  conclusion  of  law,  without  any  allegation  of  facts, 
in  opposition  to  those  out  of  which  the  conclusion  arises,  will 
be  wholly  unavailable. 

Allegations  in  the  complaint  which  are  wholly  immaterial, 
need  nol  be  traversed  :it  :ill.  Fry  v.  Bennett,  5  Sandf.  54,  9  L. 
O.  880,  I  C.  I.'.  (X.  S.)  238.  See  likewise  Tsham  v.  Williamson, 
7  L  o.  840;  Newman  v.  Otto,  1  Sandf.  668,  L0  L.  O.  14,  and 
Barton  v.  Sackett,  '■'>  Bow.  358,  1  C.  R.  96,  with  reference  to 
reply  to  an  immaterial  defence.  It  is  only  material  allegations 
which,  if  not  controverted,  will  be  taken  as  true.  A  traverse 
of  such  on  ,  however,  if  made,  cannot  be  objected  to  as 

immaterial  in  itself,  l>y  the  party  whose  original  mispleader  has 


ANSWER.  479 

caused  the  defect;  King  v.  Utica  Insurance  Company,  6  How. 
485 ;  and,  where  there  is  any,  even  the  slightest  doubt,  as  to 
whether  the  matter  in  question  is  material  or  not,  it  will  be  in- 
expedient to  omit  this  precaution. 

In  Davis  v.  Potter,  4  How.  155,  2  C.  E.  99,  an  answer  that 
the  defendant  "verily  believed,  and  therefore  answered,"  that 
the  plaintiff's  demand  was  unfounded,  was  sustained  as  amount- 
ing to  a  "denial"  of  the  facts.  It  is  clear,  however,  and  was 
so  stated  by  the  learned  judge,  that  the  same  intent  would  have 
been  more  satisfactorily  expressed,  by  a  denial  on  knowledge, 
information,  or  belief,  following  the  words  of  the  section;  and 
the  case  cannot,  therefore,  be  safely  drawn  into  a  precedent, 
especially  under  the  provisions  of  the  Code  as  since  amended. 
In  Fry  v.  Bennett,  above  cited,  an  averment  that  certain  facts 
were  true,  "as  the  defendant  had  been  informed  and  believed," 
was  sustained  as  an  averment,  on  information  and  belief,  of  the 
existence  of  those  facts,  sufficient  to  raise  an  issue.  See,  how- 
ever, the  doctrine  as  laid  down  in  Truscott  v.  Dole,  7  How.  221, 
and  Hackett  v.  Richards,  11  L.  0.  315,  that  allegations  of  this 
nature  ought  to  be  made  positively  in  all  cases,  the  reservation 
as  to  information  and  belief,  being  implied  in  the  ordinary  affi- 
davit of  verification. 

In  Sawyer  v.  Warner,  15  Barb.  282,  an  allegation,  that  the 
defendant  never  gave  the  plaintiff  the  note  declared  on,  with  a 
denial  of  indebtedness,  was  held  sufficient  to  raise  a  complete 
issue  as  to  its  making  and  delivery. 

In  Dickerson  v.  Kimball,  1  C.  E.  49,  an  answer,  stating  that 
the  defendant  "  had  not  information"  as  to  the  facts  of  present- 
ment, and  non-payment  of  the  promissory  note,  on  which  the 
action  was  brought,  "sufficient  to  form  a  belief  on  the  subject," 
was  held  to  be  enough  to  raise  an  issue,  and  a  motion  for  leave 
to  enter  up  judgment,  notwithstanding  such  answer,  was  de- 
nied, without  costs.  See  also,  Lord  v.  Gheeseborough,  4  Sandf. 
696,  1  C.  E.  (N.  S.)  322. 

Of  a  similar  nature  is  the  case  of  the  Genesee  Mutual  In- 
surance Company  v.  Moynihen,  5  How.  321,  where  an  answer, 
admitting  some  of  the  main  facts  alleged,  but  denying  "know- 
ledge sufficient  to  form  a  belief"  of  other  allegations,  which 
were  also  material,  was  held  sufficient  to  put  the  plaintiff  to 
proof  of  his  case,  and  a  motion  for  judgment  was  there  denied 
with  costs.     The  authority  of  this  case  is  confirmed  by  Snyder 


480  ANSWER. 

v.  White,  6  How.  321,  and  Temple  v.  Murray,  6  How.  329. 
Thus,  also,  in  Smith  v.  Shafelt,  3  C.  R.  175,  an  allegation  of  the 
defendant,  that  "he  was  informed  and  believed  that  the  plain- 
tiff had  received  something  on  account  of  the  demand  in  suit, 
and  that  the  plaintiff  was  "not  entitled  to  the  whole  of  the  sum 
claimed,"  would  seem  to  have  been  held  sufficient,  and  a  mo- 
tion to  strike  it  out  as  frivolous  denied ;  no  facts  or  opinion  of 
the  court  are  however  given. 

In  Robinson  v.  Frost,  14  Barb.  536,  an  answer  which  contained 
a  general  denial  of  each  and  every  allegation  of  the  complaint, 
was  sustained  as  a  sufficient  traverse,  not  merely  of  the  con- 
version of  property  there  sued  on,  but  also  of  the  plaintiff's  title, 
and  that,  under  it,  evidence  of  want  of  title  on  his  part  was 
admissible. 

In  Dennison  v.  Dennison,  9  How.  246,  a  very  strict  view  is 
taken  on  the  subject  of  denials,  and  it  is  held  that,  if  the  defend- 
ant commences  his  answer  by  a  general  denial,  he  will  not 
afterwards  be  permitted  to  traverse  specific  allegations.  He 
cannot  answer  in  both  modes;  and  the  specific  denials  in  that 
case  were  accordingly  stricken  out  as  redundant.  This  view 
seems  inconsistent  with  the  general  principles  of  the  Code, 
and  with  the  permission  to  set  forth,  by  answer,  as  many 
defences  as  the  party  may  have.  It  is  difficult,  too,  to  conceive 
in  what  manner  a  plaintiff  can  be  aggrieved,  by  the  possibly 
superfluous,  but  at  all  events  harmless,  insertion  of  mere  denials 
of  allegations  comprehended  in  a  general  traverse,  but  not 
involving  any  new  matter. 

In  Sherman  v.  Bushnell,  7  How.  171,  an  answer,  denying 
knowledge  or  information  sufficient  to  form  a  belief  that  the 
payee  of  a  note  endorsed  it  to  the  plaintiff,  was  held  sufficient 
to  raise  an  issue,  and  sustained,  on  appeal  from  an  order  striking 
it  out  as  sham. 

Although,  by  omitting  to  make  a  specific  denial  of  each  of 
the  plaintiff's  allegations,  the  defendant  will  be  held  as  admit- 
ting them;  yet,  if  he  traverse  any  one  allegation,  forming  a 
component  part  of  the  right  to  recover,  such  traverse  will  be 
sufficient  to  raise  an  issue,  and  to  prevent  the  plaintiff  from 
taking  judgment  upon  the  case  as  admitted. 

In  Lordv.  Oheeseborough,  4  Sandf.  696,  L  C.  R.  (N.  S.)  322, 
it  was  held  competent  for  adefendant  to  raise  an  issue  upon  a 
fact  essential  to  the  plaintiff's  recovery,  though  such  fact  be  not 
averred  in  the  complaint. 


ANSWER.  481 

In  traversing  the  plaintiff's  case,  it  is  not  necessary  to  sepa- 
rate the  different  denials.  The  provision  in  s.  150,  requiring 
several  defences  to  be  separately  stated,  applies  only  to  affirm- 
ative defences.     Otis  v.  Boss,  8  How.  19,3,  11  L.  0.  343. 

Where  a  fact  controverted  is  presumptively  within  the  defend- 
ant's knowledge,  he  cannot,  as  a  general  rule,  be  permitted  to 
controvert  it  by  a  qualified  denial.  If  he  does  not  know  or 
remember  the  facts  alleged,  he  must  state  the  lapse  of  time,  or 
other  circumstances,  which  he  supposes  will  warrant  his  making 
a  denial  in  that  form,  in  the  answer  itself,  or  in  the  affidavit  of 
verification.     Richardson  v.  Wilton,  4  Sandf.  708. 

What  will  be  'insufficient  as  a  Traverse.'] — The  last  decision 
naturally  introduces  this  branch  of  the  subject,  the  answer  in 
that  case  having  been  stricken  out  as  frivolous,  by  reason  of  the 
absence  of  the  explanatory  statements  there  alluded  to. 

The  mere  denial  of  a  conclusion  of  law,  arising  out  of  the 
facts  averred  by  the  plaintiff,  without  any  allegation  of  facts, 
in  opposition  to  those  stated  in  the  complaint,  is  no  answer  at 
all,  and  will  be  stricken  out  as  frivolous.  The  cases  establish- 
ing this  proposition,  have  already  been  cited  in  the  chapter  as 
to  the  essential  requisites  of  pleading.  It  is  obvious  that,  if 
such  objection  to  the  law  of  the  case  be  really  sustainable, 
demurrer  will  be  the  proper  form  to  take  it,  and  not  answer, 
according  to  the  principle  laid  down  in  Hoxie  v.  Gushman, 
before  cited. 

Although  a  denial  may  be  made  as  above,  on  information 
and  belief,  or  of  knowledge  sufficient  to  form  either,  a  mere 
allegation  of  ignorance  of  the  facts  of  the  plaintiff's  case,  is  not 
sufficient.  The  traverse  of  those  facts  must  be  in  one  of  the 
forms  as  prescribed  by  the  Code,  and  will  not  be  admissible  in 
any  other.  Thus,  in  Wood  v.  Staniels,  3  C.  R.  152,  an  allegation 
in  an  answer,  that  the  defendant  was  "ignorant  whether"  the 
facts  set  forth  by  the  plaintiffs  were  or  were  not  true,  and  leaving 
them  "to  offer  such  proofs  thereof  as  they  might  be  advised," 
was  held  to  be  an  insufficient  denial;  and  the  facts  in  question 
were  accordingly  decided  to  be  admitted,  and  a  verdict  taken 
for  the  plaintiffs  accordingly,  which  verdict  was  sustained,  on 
appeal  to  the  general  term. 

The  court  will  prevent  the  right  of  a  defendant  to  make  a 
traverse  of  this  description  from  being  abused.     Thus,  in  Mott 
v.  Burnett,  1  C.  K  (N.  S.)  225.  where  the  defendant,  sued  as  the 
31 


482  ANSWER. 

joint  maker  of  a  promissory  note,  denied  any  knowledge  as  to 
whether  such  note  was  made  by  tbe  defendants,  or  either  of 
them,  the  eourt  held  the  answer  to  be  bad,  the  averment  of 
want  of  knowledge  being  false  upon  its  face.  The  court  were 
also  disposed  to  hold  the  defendants  to  the  strict  phraseology  of 
the  Code,  in  the  form  of  the  denial,  and  to  reject  an  averment, 
containing  substantially  the  same  words,  though  in  another 
arrangement. 

In  Hance  v.  Hemming,  1  C.  K.  (N.  S.)  204,  the  principle  laid 
down  in  the  last  case  was  still  more  strongly  asserted,  and  an 
answer,  traversing  on  information  and  belief  a  fact  within  the 
means  of  knowledge  of  the  party,  had  he  only  chosen  to  ask 
his  own  attorney,  when  preparing  his  answer,  was  stricken  out 
as  sham.  The  court  held  that  to  permit  such  an  answer,  under 
such  circumstances,  would  be  to  sanction  a  palpable  evasion. 
The  same  principle  is  decisively  laid  down  in  Nichols  v.  Jones, 
6  How.  855. 

In  Edwards  v.  Lent,  8  How.  28,  the  above  doctrine  is  fully 
confirmed,  and  it  is  also  held  that  a  denial  of  sufficient  know- 
ledge, &c,  without  reference  to  information,  will  also  be  insuffi- 
cient. It  is  only  when  a  defendaut  has  neither  knowledge  nor 
information,  that  be  will  be  permitted  to  controvert  in  that 
form.     See  Richardson  v.  Wilton,  above  noticed. 

In  Truscott  v.  Dole,  7  How.  221,  and  Ilackett  v.  Richards,  11 
L.  0.  315,  a  very  strict  view  is  taken  on  the  subject  of  denials 
in  general,  and  it  is  held  that  a  material  allegation  in  the  com- 
plaint must  be  controverted  positively,  and  not  on  information 
and  belief,  and,  if  not  so  controverted,  must  be  taken  as  true.  A 
general  or  specific  denial  is  now  required,  and  the  defendant 
must  do  so  absolutely,  unless  he  has  neither  knowledge  nor 
information  sufficient  to  form  a  belief.  Whether  this  doctrine 
prevail  to  the  full  extent,  or.  not,  there  can  be  no  question  but 
that  this  mode;  of  averment  will  always  be  most  expedient, 
where  practicable. 

In  Flewry  v.  Roget,  5  Sandf.  646,  a  denial  in  an  answer,  that 
the  plaintiff  was  lawful  owner  and  holder  of  a  promissory  note 
sued  on,  was  Stricken  out  as  frivolous,  and  an  allegation  of  an 
agreement  that  such  note  should  be  renewed  on  request,  shared 
the  same  liit'-. 

The  same  ca  e  i  also  reported,  9  How.  215.  And  similar  de- 
cisions were  pronounced  by  the  same  tribunal  in  Flammcrv. 
King,  :i  How.  216,  and  Fleury  v.  Brown,  8  How.  217. 


ANSWER.  433 

A  mere  denial  that  the  plaintiff  had  any  interest  in  the  pre- 
mises, without  any  specific  statement  of  the  facts  on  which  the 
defendant  relied  to  sustain  such  allegation,  was  also  held  to  be 
bad  in  Russell  v.  Chpp,  7  Barb.  482  ;  4  How.  347 ;  3  C.  E.  64  : 
so,  likewise,  in  Anon.,  3  How.  406,  with  respect  to  an  answer 
in  slander,  merely  stating  "that  what  defendant  said  of  the 
plaintiff  was  true,"  without  any  statement  of  facts  in  support  of 
such  allegations. 

In  McMurray  v.  Gifford,  5  How.  14,  an  answer,  merely  alleg- 
ing that  a  note  sued  upon  was  obtained  by  fraud,  without  show- 
ing facts  to  prove  the  existence  of  that  fraud,  was  held  to  be 
bad.  See,  also,  Bentley  v.  Jones,  4  How.  202,  subsequently  cited 
under  the  head  of  Eeply. 

So,  likewise,  in  Dyhers  v.  Woodtvard,  7  How.  313,  it  was  held 
that  an  admission  of  facts  constituting  a  fraud,  must  prevail 
over  a  mere  unexplained  denial  of  fraudulent  intention.  And 
the  same  principles  are  laid  down,  and  a  similar  conclusion 
come  to,  in  Churchill  v.  Bennett,  8  How.  309 ;  and,  likewise,  in 
Robinson  v.  Stewart,  Court  of  Appeals,  18th  April,  1854. 

Where  the  facts  alleged  by  the  plaintiff  were  sufficient  to> 
prove  ownership  of  a  promissory  note,  a  denial  of  that  owner- 
ship by  the  defendant,  without  alleging  title  in  a  third  person, 
was  held  to  be  frivolous.  Catlin  v.  Gunter,  1  Duer,  253,  11 
L.  0.  201. 

In  libel,  where  the  publication  is  libellous  on  its  face,  it  will 
be  needless  to  put  in  any  denial  of  malice,  nor  will  the  defend- 
ant be  permitted  to  do  so.  The  law  implies  malice  in  such 
cases,  and  no  issue  can  be  raised  on  the  subject,  unless  where 
the  publication  would  be  privileged,  if  not  in  fact  malicious, 
Allegations  to  that  effect  in  the  complaint  are  immaterial,  and 
need  not  be  controverted.  Those  only  are  material,  in  the 
sense  of  the  Code,  which  the  plaintiff  must  prove  on  the  trial7 
in  order  to  maintain  his  action.  Fry  v.  Bennett,  5  Sandf.  54  ; 
9  L.  O.  336  ;  1  C.  K.  (N.  S.)  238. 

Where  a  bill  of  particulars  has  been  delivered,  the  answer 
must  not  be  to  that  bill,  but  to  the  complaint  itself.  An  answer, 
avowedly  answering  the  former,  was  held  to  be  insufficient, though 
not  frivolous,  in  Scovell  v.  Howard,  2  C.  E.  33.  The  same  doc- 
trine is  distinctly  enounced  in  Kneiss  v.  Seligman,  8  Barb.  439;. 
5  How.  425.  It  is  there  laid  down  as  "  well  settled,"  that  the 
only  effect  of  a  bill  of  particulars  is  to  limit  the  testimony  on 


484  ANSWER. 

the  trial ;  and  that  a  party  cannot  plead  or  answer  to  such  a 
bill.  The  Code  has  not  changed  the  law  in  this  respect.  See, 
also,  Yates  v.  Bigelow,  9  How.  186. 

Even  before  the  amendment  of  1851,  in  a  case  where  the 
complaint  was  for  three  separate  bills  of  goods,  and  the  answer 
disputed  only  one  out  of  the  three  bills,  but  was  silent  as  to  the 
two  others,  judgment  was  given  at  once,  for  the  amount  of  the 
two  bills  which  were  undisputed,  leaving  the  action  to  proceed 
as  to  the  other.  Tracy  v.  Humphrey,  5  How.  155  ;  3  C.  R. 
190.  The  doctrine  of  this  case  has  been  adopted,  and  the  se- 
rious objection,  that  it  involved  two  judgments  upon  one  re- 
cord, obviated  by  the  amendment  in  sec.  244,  which  gives  the 
plaintiff  power  to  apply  to  the  court  under  such  circumstances, 
that  the  defendant  may  be  ordered  to  satisfy  the  admitted  por- 
tion of  the  claim. 

If,  therefore,  the  defendant  wish  to  contest  the  plaintiffs 
claim  in  toto,  he  must  be  especially  careful  on  this  point,  in 
framing  his  traverse  of  that  claim. 

Although  a  separate  specific  denial  of  any  one  material  alle- 
gation on  the  part  of  the  plaintiff,  will  avail  to  raise  an  issue,  a 
conjunctive  denial  of  separate  allegations  will,  on  the  contrary, 
be  insufficient  for  that  purpose.  See  Hopkins  v.  Everett,  6  How. 
159 ;  3  C.  R.  150,  where  such  an  answer  was  held  bad  on  demur- 
rer. "The  denial  in  this  case,"  it  is  said  by  the  court,  "should 
have  .been  of  each  charge  disjunctively,  if  the  defendant  in- 
tended to  put  the  whole  of  them  in  issue."  The  same  conclu- 
sion is  come  to  in  Salinger  v.  Lush,  7  How.  430.  And  a  denial 
in  this  form  will  not  render  the  answer  liable  to  the  objection 
that  the  defences  so  made  arc  not  separately  stated.  The  pro- 
visions of  the  Code  on  that  subject  relate  only  to  new  matter. 
,.   v     .  8  How.  193;  11  L.  O.  343.  . 

A  hypothetical  denial  of  the  plaintiff's  case,  will  not  either 
Buffice.  This  i  expressly  held  in  McMurray  v.  Qifford,  5 
Eow.  1  1  j  Eoyce  v.  Brown,  7  Barb.  89,  3  How.  391;  Porter  v. 
McCreedy,  I  0.  R.  (N.  S.)  88;  Lewis  v.  Kendall,  6  How.  59;  1 
0.  B.  (N.  S.)  K)2;  Sayl  v.  Wooden,  6  How.  84;  1  C.  R.  (N.  S.) 
409.  In  all  these  oases  a  pleading  of  this  description  was  held 
to  be  bad. 

In  Cnririn  v.  ('oruun,  9  Barb.  219,  it  was  held  that  where,  in 
an    action    t  er   the  possession  of  land,  the  complaint 

charged,  in  substance,  a  lawful  title  in  the  plaintiff;  this  is  a 


ANSWER.  435 

material  allegation,  which  the  defendant  is  bound  to  deny  spe- 
cifically, if  he  designs  to  put  the  title  in  issue.  It  will  not  be 
enough  for  him  to  spread  out  certain  portions  of  what  may  be 
evidence  in  the  cause,  and  rely  upon  that  as  an  answer.  He 
may  either  controvert  the  plaintiff's  allegations  in  express 
words,  or  may  set  out  the  existence  of  facts  which,  if  true, 
would  show  that  the  plaintiff  has  no  title.  By  taking  the  latter 
course,  however,  and  omitting  to  put  the  title  in  issue  by  a  dis- 
tinct and  specific  denial,  he  takes  upon  himself  the  burden  of 
stating  facts,  which,  taken  to  be  true,  are  sufficient  of  them- 
selves to  show  that  the  plaintiff  has  no  title.  If  he  fail  in  doing 
this,  his  defence  will  be  nugatory.  A  specific  denial  should 
therefore  never  be  omitted,  whatever  the  affirmative  facts  may 
be,  which  tend  to  establish  a  superior  right  in  the  defendant. 

In  Plumb  v.  Whipples,  7  How.  411,  it  was  held  that  an  an- 
swer, consisting  of  denials  only,  cannot  be  amended  under  s. 
172,  because  there  is  no  matter  in  it  requiring  a  reply;  and  an 
inquest  taken  upon  the  original  answer  was  there  sustained, 
notwithstanding  the  service  of  an  amended  one,  putting  in  an 
affirmative  defence. 

In  Coriklin  v.  Yandervoort,  7  How.  483,  it  is  held  that  an  un- 
verified answer,  consisting  of  denials  only,  may  be  stricken  out 
as  false.  In  Livingston  v.  Finkle,  8  How.  485,  the  contrary  con- 
clusion is  come  to,  on  the  ground  that  a  negative  pleading  can- 
not be  held  to  be  sham,  because  it  merely  takes  issue  on  the 
plaintiff's  allegations,  or  false,  when  it  does  not  assert  any  thing. 
Where  the  answer  is  verified,  it  is  clearly  not  obnoxious  to  a 
motion  of  this  description.  See  hereafter,  under  the  head  of 
Sham  Answers  and  Defences. 


§  157.  Defensive  Allegations,  in  Bar  or  in  Abatement. 

Estoppel — Res  Adjudicata.] — In  Russell  v.  Gray,  11  Barb.  541, 
a  judgment  in  favor  of  defendants,  for  the  value  of  property  in 
replevin,  and  the  subsequent  collection  of -that  judgment,  was 
held  to  transfer  the  title  to  the  property  itself,  and  estop  them 
from  denying  the  plaintiff's  title,  in  a  subsequent  action  of  tres- 
pass brought  by  the  latter.  Nor  can  the  return  of  the  sheriff 
be  impeached,  in  a  collateral  proceeding  of  that  nature. 

The  sureties  on  a  bail-bond  are  estopped  from  controverting 


486  ANSWER. 

the  liability  of  their  principal  to  arrest,  in  an  action  founded  on 
that  instrument.     Gregory  v.  Levy,  12  Barb.  610  ;  7  How.  37. 

The  doctrine  of  estoppel  is  not  applicable  to  an  infant,  under 
any  circumstances,  and  a  plea  to  that  effect  was  held  admissi- 
ble, even  where  such  infant  had  obtained  goods  by  a  fraudulent 
representation,  that  he  was  of  age  at  the  time  of  obtaining  them. 
Brown  v.  McCune,  5  Sandf.  221. 

Nor  will  a  widow  be  estopped,  in  an  ejectment  for  dower, 
even  though  she  had  actually  received  one  third  of  the  rents  of 
the  property  in  question.  In  order  to  bar  her  claim  under 
these  circumstances,  it  must  be  proved  that  the  rent  assigned  to 
her  will  endure  for  her  life.     Ellicott  v.  Hosier,  11  Barb.  574. 

A  party  whose  own  acts  prevent  the  performance  of  a  condi- 
tion precedent,  cannot  avail  himself  of  such  non-performance, 
as  a  defence  in  an  action  against  him.  Young  v.  Hunter,  2 
Seld.  203. 

In  Kingsley  v.  Vernon,  4  Sandf.  361,  erroneous  information 
given  by  the  holder  of  a  bill  to  an  endorser,  whereby  the  latter 
was  led  to  believe  it  had  been  paid,  and  was  prevented  from 
collecting  it  at  the  time,  though  honestly  given,  was  held  to 
operate  as  an  estoppel  on  the  holder,  and  to  discharge  the  en- 
dorser from  liability. 

In  Gardner  v.  Oliver  Lee's  Bank,  11  Barb.  558,  where  the 
holder  of  a  bill  had  proved  his  debt  against  the  acceptor's 
estate,  under  the  latter's  insolvency,  and  accepted  a  dividend 
thereon,  it  was  held  that,  by  such  proceeding  on  his  part,  the 
acceptor  was  fully  discharged,  and  that  such  discharge  operated 
as  an  estoppel  between  him  and  the  drawer,  and  gave  the  latter 
a  good  defence. 

The  acts  or  declarations  of  a  party  bind  him  by  way  of  estop- 
pel, only  to  the  extent  that  they  have  been  acted  upon  by  the 
party  setting  up  the  estoppel.  Merrill  v.  Tyler ,Oourt  of  Appeals, 
L2th  Apnl,  L853. 

In  Anderson  v.  Broad,  12  L.  0.  187,  it  was  doubted  whether 
declaration!  made  by  a  sub-agent,  might  not  have  the  effect  of 
estopping  the  principal,  wince  such  sub-agent  had  merely  fol- 
lowed instructions  given  to  the  primary  agent,  and  the  princi- 
pal had  adopted  the  transaction,  by  receipt  of  its  proceeds. 

The  doctrine  of  ''//<  Judicata"  has  been  already  considered 
in  the  chapter  on  complaint,  to  which  the  reader  is  therefore 
referred.  It  may  be  convenient,  however,  to  notice  some  of  the 
oases  in  point  under  this  head  also. 


ANSWER.  487 

A  mere  submission  to  arbitration,  where  the  proceeding  has 
failed  without  the  fault  of  either  party,  will  not  avail  in  bar  of 
a  fresh  action.  Haggart  v.  Morgan,  1  Seld.  422  ;  same  case,  4 
Sandf.  198.  Nor  will  a  dismissal  of  a  complaint  by  a  referee, 
for  a  default  to  appear.  Salter  v.  Malcolm,  1  Duer,  596.  A 
valid  and  complete  award  by  arbitrators  will  however  be  con- 
clusive.     Coleman  v.  Wade,  2  Seld.  44. 

An  action  cannot  be  brought  to  remove  a  guardian  appointed 
by  a  surrogate,  even  though  fraud  be  shown.  The  proper  course 
is  to  apply  to  the  surrogate  for  an  order.  Dutton  v.  Dxdton, 
8  How.  99. 

A  surrogate's  decree  in  favor  of  a  will  of  personal  property, 
will  be  conclusive  in  a  collateral  proceeding,  even  though  there 
be  evidence  of  error  in  it.  Vanderpool  v.  Van  Valkenburgh, 
2  Seld.  190.  It  will  not,  however,  be  conclusive  as  against  cre- 
ditors of  the  estate,  who  do  not  come  in  and  prove  before  him ; 
Bank  of  Poughkeepsie  v.  Hasbrouck,  2  Seld.  216  ;  nor  will  a  sur- 
rogate's decree  be  held  a  bar  to  executors,  in  an  action  against 
their  co-executor  for  a  debt  due  to  the  estate,  not  embraced  in 
the  prior  accounting-      Wurts  v.  Jenkins,  11  Barb.  546. 

A  letter,  agreeing  to  become  security,  and  sign  a  guaranty 
for  rent,  is  an  entire  contract,  and  no  more  than  one  action  can 
be  maintained  upon  it,  even  for  rent  accruing  at  different  pe- 
riods. A  prior  recovery  under  that  contract,  will  form  a  bar  to 
any  subsequent  suit  founded  on  it.  Waterbury  v,  Graham,  4 
Sandf.  215. 

A  judgment  against  the  trustees  of  a  village,  upon  confirm- 
ing  an  assessment,  was  held  to  be  final  and  conclusive,  and  not 
to  be  impeachable,  except  for  want  of  jurisdiction  apparent  on 
the  record,  or  by  some  matter  dehors,  which  can  be  shown  with- 
out contradicting  it.  Buell  v.  Trustees  of  Lockport,  11  Barb.  602, 
affirmed  by  the  Court  of  Appeals,  12th  April,  1853- 

The  judgment  of  a  court  of  competent  jurisdiction,  on  the 
question  involved  in  a  suit,  is  conclusive  in  a  second  suit  be- 
tween the  same  parties,  depending  on  the  same  question,  though 
the  subject-matter  of  the  two  actions  be  different ;  and  parol 
proof  will  be  admissible,  to  show  what  was  really  in  contro- 
versy. Under  circumstances  of  this  description,  the  answer 
should,  therefore,  be  framed  accordingly.  Doty  v.  Brown,  4 
Comst.  71. 

A  decree,  dismissing  a  complaint  on  the  merits,  on  an  actual 


488  ANSWER. 

hearing,  was  likewise  held  to  be  conclusive  in  any  subsequent 
litigation,  between  the  same  parties,  or  those  claiming  under 
them.  Burhaus  v.  Van  Zandt,  Court  of  Appeals,  80th  Dec.  1852. 
See  general  principles  as  to  the  doctrine  of  res  judicata,  as  laid 
down  to  the  same  effect,  in  White  v.  Coatsworth,  2  Seld.  137, 
and  Bates  v.  Stanton,  1  Duer,  79 ;  and  likewise,  very  fully  and 
widely,  in  Birckhead  v.  Brown,  5  Sandf.  134. 

The  doctrine  of  res  adjudicata'  applies  to  a  judgment  on  the 
same  facts,  pronounced  in  another  State.  Dobson  v.  Pearce,  1 
Duer,  144;  10  L.  O.  170,  where  it  was  held  that  a  properly 
authenticated  record  of  such  judgment,  ought  to  be  admitted, 
as  conclusive  evidence  of  the  facts  on  which  it  was  founded. 

A  judgment  recovered  by  one  assignee  of  part  of  an  entire 
demand,  will,  however,  be  no  bar  to  a  suit  instituted  by  another 
in  respect  to  his  proportion.  Cook  v.  Genesee  Mutual  Insurance 
Company,  8  How.  514. 

A  judgment  or  decree  concludes  the  parties,  only  as  to  the 
grounds  covered  by  it,  and  the  facts  necessary  to  uphold  it,  and 
no  further.  It  forms  no  bar  to  a  subsequent  suit,  on  facts  not 
passed  upon.  Jones  v.  Alston,  Court  of  Appeals,  7th  October, 
1853.     See  also  Burdick  v.  Post,  12  Barb.  168. 

Tender.'] — An  allegation  of  a  tender  and  payment  into  court 
made  by  the  defendant,  must  be  full  and  specific,  and  complete 
in  all  its  parts,  or  it  will  be  unavailable  as  a  defence.  The 
People  v.  Banker,  8  How.  258  ;  see  however  Holmes  v.  Holmes, 
12  Barb.  187,  affirmed  by  Court  of  Appeals,  18th  April,  1854. 

Statute  of  Limitations,  etc.] — The  defence  of  the  Statute  of 
Limitations  can  only,  as  a  general  rule,  be  properly  taken  by 
answer.  See  Code,  sec.  74.  In  Genet  v.  Tallmadge,  1  C.  E.  (N. 
S.)  346,  it  was,  however,  held  that,  where  an  objection  of  this 
nature  is  apparent  on  the  face  of  the  complaint,  demurrer 
would  lie.  This  conclusion,  though  not  without  plausibility, 
1 1 .-.  untenable,  in  view  of  the  positive  wording  of  that  sec- 
tion. Tin-  Bubjei  i  "I'  Limitations,  intrinsically  considered,  has 
been  already  treated  of,  and  the  cases  in  point  cited,  in  chap- 
ter III.  of  Book  II.,  especially  devoted  to  that  subject.  The 
objection  is  one  that,  unless  specifically  pleaded,  cannot  be 
taken.    Sewn  v.  Shaft ■■/•.  2  Seld.  268. 

In  Hickok  v.  Ilnl.nl.,  |:;  Barb.  682,  it  was  held  that  a  person 


ANSWER.  489 

intrusted  with  a  note  for  collection,  and  who  had  received  the 
amount,  but  neglected  to  pay  it  over,  did  not  stand  in  the  rela- 
tion of  a  trustee,  so  as  to  deprive  him  of  the  benefit  of  the 
statute. 

In  pleading  a  public  statute,  an  express  reference  to  it,  by  its 
title  or  otherwise,  is  not  necessary.  It  is  sufficient  to  set  forth 
the  facts  which  render  its  provisions  applicable,  leaving  the 
court  to  determine  whether  they  apply  or  not.  Goelet  v.  Cow- 
drey,  1  Duer,  182.  This  doctrine  is  clearly  applicable  to  the 
Statute  of  Limitations,  as  well  as  to  the  Statute  of  Frauds,  the 
enactment  there  in  question. 

In  an  action,  brought  by  the  State  to  recover  the  possession 
of  lands,  it  has  been  held  that  an  answer,  merely  alleging  non- 
receipt  of  rents  on  the  part  of  the  people,  in  the  words  of  sub- 
division 2  of  section  75  of  the  Code,  was  insufficient,  and  de- 
murrable to  as  such ;  on  the  ground  that,  as  against  the  people, 
no  presumption  will  lie,  and  that  the  defendant,  in  such  cases, 
must  plead  the  facts  of  his  title,  and  show  by  specific  allegation 
a  documentary  title  in  himself,  or  a  continuous  adverse  posses- 
sion.   The  People  v.  Van  Rensselaer,  8  Barb.  189. 

The  same  doctrine  is  laid  down  in  The  People  v.  Livingston, 
8  Barb.  253,  though  there,  a  grant  from  the  Crown  of  Great 
Britain  having  been  shown  by  the  defendant,  judgment  was 
given  in  his  favor.  See  these  two  cases  fully  cited  in  a  previous 
chapter,  under  the  head  of  Limitations  of  Actions  relative  to 
Eeal  Estate.  The  doctrine  of  these  two  cases  is,  however, 
overruled  by  the  recent  decision  of  The  People  v.  Arnold,  4 
Comst.  508,  where  it  was  held  that  an  answer  to  the  above 
effect,  following  the  precise  words  of  the  subdivision  before  re- 
ferred to,  was  good,  inasmuch  as  it  pleaded  the  facts  of  the 
case,  and  not  the  evidence  in  support  of  those  facts ;  though,  of 
course,  upon  the  actual  trial,  a  positive  adverse  possession  must 
be  shown. 

The  plea  of  the  Statute  of  Limitations  is  compatible,  until 
a  traverse  of  the  plaintiff's  case  on  other  points,  and  cannot  be 
stricken  out  for  inconsistency  under  these  circumstances.  Os- 
trom  v.  Bixby,  9  How.  57. 

Plea  of  uPlene  Administravit."'] — In  actions  against  an  execu- 
tor or  administrator,  allegations,  analogous  to  the  old  plea  of 
plene  administrauit,  are  inadmissible;  and,  if  made,  the  answer 


490  ANSWER. 

will  be  held  bad  upon  demurrer,  and  judgment  given  for  the 
plaintiff,  for  future  assets,  "  quando  acciderintP  The  plea  of 
plene  administravit  was  not  even  a  good  plea  under  the  Revised 
Statutes.  Hyde  v.  Conrad,  5  How.  112  ;  8  C.  R.  162  ;  Belden  v. 
Knowlton,  unreported  decision  of  Superior  Court.  In  the  latter 
case,  however,  allegations  of  this  nature  were  refused  to  be 
stricken  out  upon  motion,  though  subsequently  held  bad  upon 
demurrer. 

Other  Matters.'] — The  plea  of  justification  in  libel  and  slander, 
and  the  point  which  has  been  raised,  as  to  how  far  the  assertion 
of  an  equitable  title  in  the  defendant  may  be  considered  as  a 
bar  to  the  plaintiff's  right  to  recover  in  ejectment,  will  be  con- 
sidered under  the  succeeding  heads,  with  reference  to  those  par- 
ticular forms  of  action. 

In  pleading  a  bankrupt's  discharge  by  a  court  of  the  United 
States,  the  facts  on  which  j  urisdiction  depends  must  be  averred. 
When  averred,  however,  that  jurisdiction  will  be  presumed, 
until  the  contrary  appears.    Morse  v.  Cloyes,  11  Barb.  100. 


§  158.  Defensive  Allegations  Continued,  Averment 
of  Facts. 

General  Principles^] — The  next  head  to  be  considered,  is  the 
allegation  of  new  matter,  going,  either  partially  or  wholly,  to 
defeat  the  plaintiff's  claim. 

The  general  principles  in  relation  to  averments  of  facts,  as 
laid  down  in  the  introductory  chapter  as  to  the  essential  requi- 
sites of  pleading,  are,  of  course,  specially  applicable  to  the  sub- 
ject of  answer.  The  facts  alone  of  the  defendant's  case  form, 
as  there  laid  down,  the  proper  subjects  of  allegation.  The 
pleading  of  a  bare  conclusion  of  law,  unsupported  by  state- 
ments of  (acts,  on  the  one  hand,  and  allegations  of  the  evidence 
<>f  foots,  and  not  of  the  facts  themselves,  on  the  other,  are 
equally  inadmisi  ible.  Allegations  of  the.  former  nature,  stand- 
ing alone,  constitute  no  defence  at  nil:  and  those  of  the  latter 
le  cription  will,  if  objected  to,  be  Btricken  out  ns  redundant. 

A  full,  BUmmary,  and  long  discussion  of  almost  every  defect 
which  fan  exist,  with  reference  to  statements  of  fact  in  an 
answer,  will  be  found  in  Boyce  v.  Brown,  3  How.  891.    The  an- 


ANSWER.  491 

swer  there  objected  to,  was  held  to  be  at  once  argumentative, 
contradictory,  absurd,  double,  inconsistent,  uncertain,  incon- 
gruous, and,  in  many  particulars,  unintelligible,  and  was  set 
aside  in  consequence.  This  decision  was  affirmed  upon  appeal. 
See  Boyce  v.  Brown,  7  Barb.  80. 

In  Bridge  v.  Payson,  5  Sandf.  210,  the  following  general  prin- 
ciples are  laid  down  with  reference  to  averments  in  answer. 
Each  separate  statement  must  be  complete  in  itself,  but,  to  mark 
it  as  a  separate  defence,  no  formal  commencement  or  conclusion 
is  required.  The  statement  of  facts  constituting  a  defence, 
need  not  be  accompanied  with  the  reasons  why  it  should  ope- 
rate as  a  bar;  the  intent  to  rely  upon  it  is  a  necessary  infer- 
ence. Nor  is  the  joinder  of  matter  of  defence  and  matter  in 
abatement  in  the  same  answer  a  ground  of  objection.  It  may, 
and  must  properly,  contain  every  defence,  of  whatever  nature, 
on  which  the  defendant  means  to  rely.  Where  no  affirmative 
claim  is  made  on  the  part  of  the  defendant,  a  demand  of  relief 
in  the  answer  will  be  wholly  unnecessary. 

Although  public  statutes  need  no  special  reference  to  them, 
on  pleading  facts  which  bring  the  case  within  their  operation, 
and  although  this  rule  holds  good  as  to  statutes  of  local,  as  well 
as  to  those  of  general  application,  and  to  ordinances  expressly 
founded  on  such  statutes,  (see  heretofore,  under  the  head  @f 
Complaint,)  this  is  not  the  case  with  reference  to  ordinary 
municipal  ordinances.  Such  ordinances  are  not  public  acts,  to 
the  extent  that  they  can  be  noticed,  without  being  specially 
pleaded.     The  People  v.  Mayor  of  New  York,  7  How.  81. 

Where  the  complaint  is  deficient  in  the  necessary  allegations, 
any  fact  omitted  by  the  plaintiff,  but  essential  to  his  recovery, 
may  be  denied  by  the  answer.  Lord  v.  Cheeseborough,  4  Sandf. 
696,  1  C.  B,  (N.  S.)  322. 

The  principle  that  evidence  can  only  be  introduced  "secun- 
dum allegata,'1''  holds  equally  good,  in  relation  to  a  defence,  as  to 
a  cause  of  action.  See  Catlin  v.  Ounter,  1  Duer,  253 ;  11  L.  O. 
201 ;  Catlin  v.  Manser,  1  Duer,  309 ;  Coan  v.  Osgood,  15  Bar- 
bour, 583. 

If  the  defence  be  imperfectly  put  in,  the  defendant  will  be 
bound  by  it,  and  cannot  introduce  evidence  of  facts  not 
embraced  by  the  record.  Thus,  in  KetUetas  v.  Maybee,  1  C.  E. 
(N.  S.)  363,  evidence  that  the  defendant  had  parted  with  a 
lease,  upon  which  he  was  sued  as  assignee,  was  held  to  be  inad- 


492  ANSWER. 

missible,  under  a  mere  denial  of  the  execution  of  that  lease,  and 
of  the  assignment  of  it  to  him,  to  which  his  answer  was  confined. 
See  analogous  principles  in  Bristol  v.  The  Rensselaer  and  Sara- 
toga Railroad  Company,  9  Barb.  158. 

A  portion  of  an  answer,  professing  to  be  a  defence  to  the  whole 
of  the  complaint,  but  being,  in  fact,  an  answer  to  part  only  of 
the  cause  of  action,  was  held  to  be  bad  in  Thumb  v.  Walrath, 
6  How.  196,  1  C.  E.  (K  S.)  316. 

The  necessity  of  making  a  separate  statement  of  each  separate 
ground  of  defence,  and,  under  Eule  87,  of  numbering  each 
separate  statement,  must  be  borne  in  mind  in  all  cases. 

An  answer,  drawn  according  to  the  old  chancery  forms, 
admitting  the  facts,  but  stating  legal  propositions  in  defence, 
cannot  be  sustained  under  the  Code.  An  answer,  now,  must 
either  deny  the  allegations  of  the  complaint,  or  state  new  matter, 
by  way  of  avoidance.     Goidd  v.  Williams,  9  How.  51. 

Averments  in  Particular  Cases, — Bills  and  Notes, —  Guaranty, 
&c.~\ — In  Castles  v.  Woodhouse,  1  C.  E.  72,  an  answer,  admitting 
the  making  and  delivery  of  a  note,  but  alleging  that  the  goods, 
for  which  it  was  given,  were  inferior  in  quality  to  those  con- 
tracted for,  was  held  to  be  insufficient;  because  it  did  not  state 
what  was  the  defect  in  those  goods,  and  what  the  difference  in 
value  occasioned  thereby. 

In  Hicks  v.  Ilinde,  6  How.  1,  9  Barb.  528,  it  was  held  that  it 
is  competent  for  the  drawer  of  a  draft,  as  well  as  for  the  endorser 
of  a  promissory  note,  to  restrict  his  liability,  by  qualifying  words 
added  to  his  signature.  The  drawer  having  there  signed  as 
"agent,"  and  the  principal  being  known,  and  a  party  to  the 
transaction,  the  former  was  held  not  to  be  liable. 

In  Kimjsley  v.  Vernon,  4  Sandf.  361,  erroneous  information, 
given  by  the  holder  of  a  note  to  the  endorser,  was  held  to  dis- 
charge the  latter  from  all  liability,  and  to  operate  as  an  estoppel 
on  the  former. 

In  Gardner  v.  Oliver  Lee's  Bad:,  11  Barb.  558,  the  acceptance 
of  :i  dividend  out  "I'  the  acceptor's  estate,  on  the  part  of  the 
IioM<t,  was  held  to  discharge  the  former  altogether,  and  to  give 
the  drawer  a  good  defence,  by  way  of  estoppel,  as  between  him 
and  the  latter. 

The  non-completion  of  a  mutual  contract,  was  held  to  be  no 
defence  to  an  action  on  a  promissory  note,  given  as  part  of  its 


ANSWER.  493 

terms,  though  the  other  party  failed  in  a  full  performance  on 
his  part.  Pratt  v.  Gulick,  13  Barb.  297.  Where,  however,  an 
action  of  this  description  had  been  brought  by  the  vendor  of 
land,  who  had  wholly  failed  to  make  a  title,  on  a  note  given  on 
account  of  purchase-money,  before  that  failure,  it  was  held  not 
to  be  maintainable.  Burwell  v.  Jackson,  Court  of  Appeals,  18th 
April,  1854.  The  non-performance  of  a  condition  precedent, 
may,  too,  be  a  defence  under  these  circumstances,  unless  such 
non-performance  be  occasioned  by  the  act  of  the  party  himself. 
So  held,  with  reference  to  a  guarant}7-,  in  Mains  v.  Ilaight,  14 
Barb.  76.  The  terms  of  a  guaranty  must  be  strictly  complied 
with,  or  the  guarantor  will  not  be  bound.  It  is  a  claim  strictis- 
simi  juris.     Bigelow  v.  Benton,  1-1  Barb.  123. 

Defence  of  Usury.'] — Where  usury  is  pleaded,  it  must  be  so  in 
clear  and  distinct  terms,  and  the  terms  of  the  usurious  contract, 
and  the  quantum  of  usurious  interest  and  premium,  must  be 
specified,  and  distinctly  and  correctly  set  out,  and  the  facts  dis- 
tinctly alleged.  A  mere  allegation  that  a  note  sued  on  was 
usurious  in  its  inception,  and  that  the  payee  knew  it  was  exe- 
cuted fraudulently,  and  to  sell  usuriously,  without  further  alle- 
gation of  facts,  was  accordingly  held  to  be  bad  in  Gould  v.  Horner, 
12  Barb.  601,  1  C.  K.  (N.  S.)  356.  See,  to  the  same  effect,  Fay 
v.  Grirnsteed,  10  Barb.  321.  See,  also,  Quick  v.  Grant,  10  L.  0. 
344.  In  Gatlin  v.  Gunter,  1  Duer,  253;  11  L.  0.  201,  it  was, 
in  like  manner,  held  that  all  facts  tending  to  show  usury  must 
be  specially  averred,  and  the  proof  must  correspond,  in  all 
respects,  with  the  allegations,  or  the  defence  will  be  overruled. 

Nor  will  the  court  allow  an  amendment  after  trial,  to  let  in 
such  a  defence,  against  a  holder  of  negotiable  paper,  for  value, 
and  without  notice.     Same  case. 

In  Bates  v.  Voorhies,  7  How.  234,  the  court  refused  a  similar 
application  for  leave  to  amend  the  answer. 

.In  Cuylerv.  Sanford,  13  Barb.  339,  it  was  held  that  the  exac- 
tion of  a  condition,  that  the  money  borrowed  should  be  paid  at 
another  place,  was  not  necessarily  usurious,  though  the  rate  of 
exchange,  at  that  time,  was  in  favor  of  the  latter;  and  a  verdict 
obtained  by  the  plaintiff  was  sustained. 

In  Schermevhorn  v.  The  American  Life  Insurance  and  Trust  Com- 
pany, 14  Barb.  131,  the  defence  of  usury  was  sustained,  in  re- 
spect of  a  long  and  complicated  series  of  transactions  in  con- 


494  ANSWER. 

nection  with  a  Land  Company,  and  of  securities  given  thereon, 
by  which,  in  effect,  a  rate  higher  than  the  legal  interest  had 
been  reserved. 

In  Hurd  v.  Hunt,  14  Barb.  573,  a  transaction  in  relation  to 
the  collection  of  a  promissory  note,  and  of  an  advance  on  account, 
by  which  the  party  who  undertook  that  collection  realized  a 
trifling  profit  over  the  legal  rate  of  interest,  was  held  not  to 
fall  strictly  within  the  character  of  a  loan,  and  not  to  be  usu- 
rious. 

Where  two  parties  had  exchanged  their  notes  to  raise  money 
by  sale  of  them,  it  was  held  that  each  was  a  valid  consideration 
for  the  other,  and  that  a  sale  of  either,  at  a  discount  greater  than 
seven  per  cent,  did  not  render  it  usurious  in  the  hands  of  the 
purchaser.     Cobb  v.  Titus,  Court  of  Appeals,  18th  April,  1854. 

It  will  be  obvious  from  the  citation  of  the  foregoing  cases, 
that  the  defence  of  usury  is  one  of  great  peril  and  uncertainty, 
and  one  that  requires  the  strictest  attention  to  the  statement  of 
details,  in  the  pleading  by  which  it  is  taken. 

Libel  and  Slander. ,] — In  libel  and  slander,  sec.  165  of  the  Code 
specially  provides  for  the  combination  of  a  plea  of  justification, 
with  allegations  of  mitigating  circumstances,  as  follows  : 

§  165.  In  the  actions  mentioned  in  the  last  section,  the  defendant 
may,  in  his  answer,  allege  both  the  truth  of  the  matter  charged  as 
defamatory,  and  any  miligating  circumstances,  to  reduce  the  amount 
of  damages;  and,  whether  he  prove  the  justification  or  not,  he  may 
give  in  evidence  the  mitigating  circumstances. 

The  right  to  allege  mitigating  circumstances  on  the  face  of 
the  pleadings  is,  however,  confined  to  the  above  class  of  cases, 
and  to  them  alone.  Allegations  of  this  nature  have  been  de- 
cided to  be  inadmissible  in  actions  for  assault  and  battery, 
Roe  v.  Rogers,  8  How.  350;  or  breach  of  promise  of  marriage, 
Smith  v.  Waite,  7  How.  227;  Rosenthal  v.  Brush,  1  C.  K.  (N.  S.) 
If  admissible  in  evidence  at  all,  they  can  be  proved  without 
being  specially  pleaded.  See  infra,  in  relation  to  similar  alie- 
ns, when  presented  without  the  defence  of  justification. 

in  pleading  a  justification,  Pacts  must  be  slated.  A  bare  alle- 
gation that  "what  the  defendant  said  of  the  plaintiff  was  true," 
ha  i  been  held  to  be  insufficient.  Anon.,  •">  How.  406.  The  same 
is  laid  down  in  Sayles  v.  Wooden^  6  How.  84;  1  C.  R.  (N.  S.) 
109  ;  and  Anibal  v.  Hunter^  6  How. 255;  1  C.  R.  (N.  S.)403. 


ANSWER.  495 

A  long  and  interesting  discussion  on  the  subject  of  the  pro- 
per allegations  in  this  description  of  cases,  will  be  found  in  Fry 
v.  Bennett,  9  L.  0.  330 ;  5  Sandf.  54 ;  1  C.  E.  (N.  S.)  238,  a 
case  of  demurrer  to  an  answer  of  the  most  objectionable  na- 
ture, and  so  characterized  by  the  court.  The  following  are 
amongst  the  numerous  principles  there  laid  down  on  the  sub- 
ject: The  denial  of  malice,  in  a  publication  libellous  on  its 
face,  is  inadmissible;  malice,  in  such  cases,  is  a  conclusion  of 
law,  on  which  no  issue  can  be  raised,  and  which  the  plaintiff 
cannot  be  required  to  prove,  or  the  defendant  permitted  to 
deny ;  it  is  only  where  the  publication  is  privileged,  if  not  in 
fact  malicious,  that  malice  can  be  made  the  subject  of  aji  issue. 
No  issue  can  be  taken,  either,  as  to  the  truth  of  inuendoes  in  the 
complaint.  The  sole  office  of  an  inuendo  is  explanation,  and 
the  only  question  which  it  raises  is,  whether  such  explanation 
is  a  legitimate  deduction  from  the  premises  stated,  which  ques- 
tion it  belongs  to  the  court  alone  to  determine.  The  principle 
that,  in  pleading  justification,  the  facts  tending  to  establish  such 
justification  must  be  distinctly  and  certainly  averred,  (see  Anon., 
3  How.  406,  below  cited,)  is  clearly  and  positively  laid  down ; 
and  a  general  averment,  that  the  facts  stated  in  the  publication 
complained  of,  "  were  and  are  true,"  was  held  to  be  insufficient. 
An  answer  is  insufficient,  in  the  sense  of  the  Code,  not  only 
where  it  sets  up  a  defence  which  is  groundless  in  law,  but 
where,  in  the  mode  of  stating  a  defence  otherwise  valid,  it 
violates  those  primary  and  essential  rules  of  pleading  which 
the  Code  has  studiously  retained.  The  question  of  privilege  is 
laid  down  as  one  properly  raisable  by  demurrer;  and  it  is  held 
that,  in  all  cases  where  the  defence  of  privilege  is  on  the  ground 
that  the  animadversions  complained  of  were  a  fair  and  legiti- 
mate criticism,  the  defences  of  truth  and  privilege  are  insepa- 
rable ;  and,  if  the  former  is  not  duly  pleaded,  the  latter  must 
of  necessity  be  rejected.  The  same  principle  is  laid  down  as  to 
the  averment  of  mitigating  circumstances,  as  that  in  Graham  v. 
Stone,  also  below  cited  ;  and,  justification  not  having  been  suf- 
ficiently pleaded,  a  demurrer  to  averments  of  that  description 
was  allowed.  Where,  too,  circumstances  of  this  nature  are 
meant  to  be  given  in  evidence,  they  must  be  stated  as  such  in 
the  answer;  otherwise  the  plaintiff  will  have  a  right  to  infer 
that  they  are  meant  to  be  relied  on  in  bar,  and,  on  that  ground, 
may  justly  demur  to  them.    See  observations  on  the  same  case, 


406  ANSWER. 

under  the  heads  of  Demurrer,  Irrelevancy,  Complaint,  and  De- 
murrer to  Answer. 

The  defence  of  justification  is  subject  to  the  different  inci- 
dents, and  liable  to  the  risks  which  attended  it  under  the  old 
practice.  In  Few  v.  Boscoe,  4  Comst.  162,  the  law  on  this  sub- 
ject, in  relation  to  pleadings  under  the  present  system,  is  clearly 
laid  down.  Where  several  charges  are  made,  it  is  competent 
for  the  defendant  to  justify  as  to  one  only;  but,  on  that  point, 
his  justification  must  be  full.  Failure  in  making  out  a  justifi- 
cation, when  pleaded,  is  still,  as  before,  an  aggravation ;  and,  in 
that  case,  the  defendant  will  be  entitled  to  no  benefit  from  the 
evidence  adduced  by  him.  Unless  justification  be  pleaded,  the 
defendant  cannot  prove  the  truth  of  the  charge,  either  in  de- 
fence, or  mitigation ;  but,  on  a  plea  of  the  general  issue,  it  is 
competent  for  him  to  introduce  evidence  to  disprove  malice  on 
his  part. 

In  Bush  v.  Prosser,  13  Barb.  221,  in  an  action  of  slander, 
where  the  proof  of  the  plea  of  justification  altogether  fell  short 
of  the.  offence  charged,  it  was  held  that  evidence  of  a  minor 
offence  was  inadmissible,  either  in  justification  of  the  charge, 
or  in  mitigation  of  damages.  See  likewise  Lewis  v.  Kendall,  6 
How.  59,  1  C.  E.  (N.  S.)  402.  See  also  similar  principles  laid 
down  in  Bisbey  v.  Shaw,  15  Barb.  578.  Nor  will  a  mistaken 
impression  of  the  law  relieve  the  defendant  from  his  responsi- 
bility in  making  an  unsustainable  charge. 

In  Loveland  v.  Ilosmer,  8  How.  215,  a  partial  justification, 
not  going  to  the  whole  extent  of  the  charge  in  the  complaint, 
Avas  held  bad,  upon  demurrer  to  the  answer. 

Where,  however,  the  libel  complained  of  alleged  the  plain- 
tiff to  be  a  thief,  and  that  she  had  stolen  specific  articles;  alle- 
gations of  various  other  thefts  on  her  part,  were  held  to  be 
admissible  in  the  answer,  as  tending  to  prove  the  general 
charge  of  theft.    Jaycocks  v.  Ayres,  7  How.  215. 

An  answer  of  juslilication,  in  slander,  must  confess  the 
speaking  of  the  words  complained  of.  Anibahv.  Hunter,  6 
Eow.  255  L  C.  R.  (N.  S.)  403.  It.  must  also,  as  before 
notic  ;"    the    facts    which    go    to   constitute    the   crime 

imputed,  BO  that  a  sufficient  issue  may  be  (rained.  If  it  merely 
that  the  words  spoken  were  true,  it  will  be  insufficient  as 
a  justification. 

Although,  by  the  above-cited  section,  allegations  in  mitiga- 


ANSWER.  497 

tion  of  damages  are  expressly  allowable,  in  cases  where  a 
justification  is  pleaded;  in  cases  where  the  charge  in  the  com- 
plaint is  denied  altogether,  mitigating  circumstances  cannot  be 
averred.  This  principle  is  expressly  laid  down  by  the  court, 
and  a  demurrer  on  this  ground  allowed,  in  Graham  v.  Stone, 
6  How.  15.  The  authority  of  this  decision  is  confirmed  by  the  • 
following  series  of  cases,  laying  down  the  law  to  the  same  effect: 
Meyer  v.  Schultz,  4  Sandf.  664 ;  Brown  v.  Orvis,  6  How.  376 ; 
Fry  v.  Bennett,  above  cited;  Matthews  v.  Beach,  5  Sandf.  256. 
In  Lane  v.  Gilbert,  9  How.  150,  it  was  held  that,  where  a  de- 
fendant cannot  take  issue  on  the  material  allegations  in  the 
complaint,  either  by  denial  or  justification,  he  wshould  not 
answer  at  all.  He  can  give  any  mitigating  circumstances  in 
evidence,  before  the  sheriff's  jury,  on  the  assessment  of  damages. 
In  Follett  v.  Jewiit,  11  L.  O.  193,  the  above  conclusions  are 
sought  to  be  impeached,  and  the  learned  judge  goes  to  the 
extent  of  laying  down  that  matter  in  mitigation  may  be  plead- 
ed either  with  or  without  a  justification ;  and  similar  views  are 
enounced  in  Stiles  v.  Comstoch,  9  How.  48.  This  view  seems, 
however,  to  be  contrary  to  the  evident  import  of  sec.  195,  and 
the  authority  of  these  decisions  to  be  wholly  overruled  by  the 
series  of  cases  to  the  contrary  effect. 

Allegations  in  mitigation,  when  standing  alone  and  unsup- 
ported  by  a  sufficient  plea  of  justification,  appear  to  be  impeach- 
able by  way  of  demurrer.  See  various  cases  above  cited.  But, 
when  accompanied  with  such  a  plea,  they  are  not  demurrable,, 
nor  do  they  require  any  reply,  such  matter  not  being  in  these 
cases  a  direct  defence  to  the  action,  but  merely  matter  for  the 
consideration  of  the  jury,  in  their  assessment  of  damages,  upon 
the  trial.     Newman  v.  Otto,  4  Sandf.  668;  10  L.  0.  14. 

Whether  matter  in  mitigation  is  provable  on  the  trial,  in  this 
class  of  cases,  when  not  pleaded,  has  been  made  the  subject  of 
question.  Evidence  of  that  description  was  held  to  be  inad- 
missible, under  a  mere  general  denial,  in  Anon.,  6  How.  160. 
In  Anon.,  8  How.  434,  the  contrary  conclusion  is  come  to,  on 
the  ground  that  matter  of  that  nature  does  not  constitute  a 
defence,  and  cannot  therefore  be  pleaded  ;  but  that  evidence  in 
mitigation  may  be  given  on  the  trial,  as  under  the  former  prac- 
tice in  these  cases,  and  that  subsisting  in  actions  of  an  analogous 
nature.  See  Schneider  v.  Schultz,  4  Sandf.  664;  Smith  v.Waite, 
7  How.  227;  Rosenthal  v.  Brush,  1  C.  B,  (N.  S.)228.  See,  too, 
32 


498  ANSWER. 

Lane  v.  Gilbert,  9  How.  150.  In  Stiles  v.  Comstock,  9  How.  48, 
doubts  were  expressed  on  this  head,  but  in  connection  with  the 
views  that  matter  of  this  nature  can  always  be  pleaded,  which 
seem  to  be  overruled,  as  above  noticed. 

The  question  as  to  what  will  or  will  not  be  considered  as 
privileged  communications,  and,  if  so,  to  what  extent,  has  been 
already  considered,  under  the  head  of  Complaint.  See  that 
chapter,  and  various  cases,  and  the  recent  statute,  c.  130  of  Laws 
of  1854,  there  cited  under  this  head.  See  likewise,  in  relation 
to  privileged  communications,  Taylor  v.  Church,  10  L.  O.  87, 
and  various  other  cases  there  referred  to,  as  to  what  will  or 
will  not  be  considered  as  constituting  a  cause  of  action  in  slan- 
der or  libel,  in  a  general  point  of  view.  See,  in  particular, 
Bennett  v.  Williamson,  4  Sandf.  60,  as  to  libel,  and  Phincle  v. 
Vaughan,  12  Barb.  215,  in  relation  to  slander. 

In  an  action  brought  in  respect  of  words  spoken  in  a  legal 
proceeding,  and  privileged  on  that  ground,  the  defendant  need 
not  deny  malice,  in  connection  with  the  defence  of  privilege. 
Garr  v.  Selden,  4  Comst.  91. 

Similar  views  to  those  above  cited  in  Fry  v.  Bennett,  as  to 
malice  being  implied  by  law,  where  apparent  upon  the  facts, 
■without  any  express  averment,  are  likewise  enounced  in  Howard 
v.  Sexton,  4  Comst.  157.  See,  also,  Purdy  v.  Carpenter,  6  How.  361. 

In  cases  of  the  foregoing  description,  as  in  others,  a  hypothe- 
tical defence  is  not  admissible,  under  any  circumstances.  See 
Porter  v.  McCreedy,  1  C.  li.  (N.  S.)  88;  Lewis  v.  Kendall,  6  How. 
59 ;  1  C.  R.  (N.  S.)  402.  In  the  former  case,  the  objectionable 
portion  of  the  answer  was  stricken  out ;  and,  in  the  latter,  a  de- 
murrer was  allowed.  See,  also,  Sayles  v.  Wooden,  6  How.  84; 
1  C.  R  (NT.  S.)  409.  See  likewise  Buddington  v.  Davis,  6 
How.  401. 

,],  \ault  and  Battery,  <!'•<•. ]  -The  defendant,  in  these  cases,  will 
not  be  permitted  to  plead  matter  in  justification,  in  connection 
with  :i  general  denial.  Roev.  Rogers,  8  Eow.  366;  Schneider 
v.  Schultz,  4  Sandf.  664,  Sec,  however,  Lansingh  v.  Parker,  9 
How.  28  '        meral  principle  that  matter  in 

avoidance  ia  incompatible  with  a  general  denial,  Arthur  v. 
Brooke,  I  I  Barb.  588  ;  Smith  v.  Waite,  7   How.  227. 

This  rule  will  not,  however,  debar  the  defendant  in  these 
cases,  from  giving  evidence  of  mitigating  circumstances,  if  he 


ANSWER.  499 

has  any,  on  the  trial  itself.  Sehneider  v.  Schultz,  above  cited ; 
Rosenthal  v.  Brush,  1  C.  E.  (N.  S.)  228.  This  view  is,  however, 
partially  questioned,  in  relation  to  the  mode  of  pleading,  but 
not  as  to  the  admissibility  of  the  evidence,  in  Stiles  v.  Comstock, 
9  How.  48,  before  noticed.  See  likewise,  as  to  an  action  for 
breach  of  promise  of  marriage,  /Smith  v.  Waite,  7  How.  227. 

In  relation  to  what  will  or  will  not  be  admissible  evidence  in 
mitigation,  under  these  circumstances,  see  Corning  v.  Corning,  2 
Seld.  97. 

Divorce.'] — Provocation  on  the  part  of  the  wife  may  be 
alleged  by  the  husband,  in  his  answer  to  a  complaint  by  the 
former,  for  a  divorce  on  the  ground  of  cruelty.  He  may  also 
introduce  allegations  to  show  the  real  value  of  a  dowry  received 
with  her,  and  also  statements  in  support  of  any  equities  he  may 
have  on  that  ground,  in  opposition  to  her  claim  for  alimony. 
Devamnes  v.  Devaismes,  3  C.  R.  124. 

Replevin  and  Trover  i\ — In  an  action  to  recover  possession  of 
property,  distrained  for  doing  damage,  an  allegation  of  lawful 
possession  of  the  real  property  on  which  the  distress  was  made, 
and  that  the  property  distrained  was  "  damage  feasant"  will  be 
sufficient,  without  setting  forth  the  title  to  such  property.  See 
Code,  sec.  166. 

In  trover  for  the  cutting  and  sale  of  timber,  on  lands  in  pos- 
session of  the  purchaser  under  an  executory  contract,  a  parol 
license,  when  fully  acted  upon  before  revocation,  will  constitute 
a  good  defence;  nor  will  the  fact  that  the  contract  itself  re- 
quires the  license  to  be  in  writing,  be  a  bar  to  such  defence, 
when  a  parol  license  has  been  given,  and  acted  upon.  Pierre- 
pont  v.  Barnard,  2  Seld.  279. 

Ileal  Estate  Cases. 

Trespass,  die.] — A  defendant,  who  has  put  the  plaintiff's  title 
at  issue  by  his  answer,  cannot  relieve  himself  from  his  conse- 
quent liability  to  costs,  whatever  may  be  the  amount  of  the 
recovery,  by  admitting  that  title  on  the  trial.  It  will  be  too 
late  for  him  to  do  so  then,  after  he  has  compelled  the  plaintiff 
to  make  the  necessary  preparations.  Niles  v.  Lindslei/,  8  How. 
131 ;  1  Duer,  610. 

Partition. — In  partition,  whether  by  petition  or  suit,  anything 


500  ANSWER. 

may  be  pleaded  "  which  will  abate  the  action,  or  bar  the  peti- 
tioner's right  to  a  judgment."  Reed  v.  Child,  4  How.  125 ;  2  C. 
E.  69.  But  facts  merely  introduced  for  the  purpose  of  endea- 
voring to  charge  the  adverse  party  with  costs,  as,  for  instance, 
allegations  of  an  unreasonable  refusal  to  make  partition  b_y 
deed,  will  be  stricken  out  as  irrelevant.  McGowan  v.  Morrow,  3 
C.  E.  9. 

In  a  proceeding  of  this  nature,  it  is  competent  for  one  de- 
fendant to  dispute  the  claims  of  another;  and  these  claims  may 
properly  be  tried  and  settled  in  the  general  suit,  if  they  involve 
interests  in,  or  liens  on  the  property  sought  to  be  partitioned. 
Bogardus  v.  Parker,  7  How.  305. 

Ejectment] — It  was  doubted  in  Hill  v.  McCarthy,  3  C.  E.  49, 
whether,  in  ejectment,  an  equitable  title  could  be  set  up  as  a  bar 
to  the  plaintiff's  claim.  See,  also,  Otis  v.  Sill,  8  Barb.  102 ; 
Crary  v.  Goodman,  9  Barb.  657.  Cochran  v.  Webb,  4  Sandf.  653, 
contains  a  positive  ruling  to  that  effect,  holding  that  an  equi- 
table defence,  looking  to  affirmative  relief,  could  only  be  main- 
tained by  means  of  a  cross  action.  This  doctrine  had,  how- 
ever, been  doubted,  even  under  the  former  Code.  See  Wooden 
v.  Wojjle,  6  How.  145  ;  ICE.  (N.  S.)  392.  The  amendment  in 
the  present,  puts  the  power  to  do  so  beyond  all  doubt. 

In  interposing  a  defence  of  this  description,  the  defendant 
must,  however,  become  an  actor  in  respect  of  his  claim.  His 
answer  must  contain  all  the  necessary  allegations  to  support  it 
affirmatively,  and  he  must  ask  and  obtain  affirmative  relief. 
Dewey  v.  lloag,  15  Barb.  365. 

An  allegation  of  adverse  possession  must  be  specific,  and 
must  state  all  necessary  facts  in  relation  to  the  claim  so  made. 
Clarice  v.  Hughes,  13  Barb.  147.  In  relation  to  the  doctrine  of 
adv<  ession  in  general,  see  ante,  under  the  head  of  Limit- 

ation-. 

In  reference  to  ejectment,  brought  against  a  tenant,  the  old 
rule,  wliieli  allowed  the  Landlord  to  defend,  is  applicable  under 
the  Code,  "mutatis  mutandis."  lie  may  do  bo,  in  conjunction 
with  the  tenant,  if  the  Latter  appears;  or  alone,  if  he  fail  to  do 
so.  But,  to  entitle  him  bo  to  come  in,  his  interest  or  privity  of 
estate  must  be  shown.    Godfrey  v.  Toumsend,  8  How.  398. 

In  relation  to  ejectment  for  dower,  brought  against  a  tenant 
and  what  will  or  will  not  constitute  a  defence  in  such  cases,  see 


ANSWER.  501 

Ellicott  v.  Mosier,  11  Barb.  574,  before  cited.  Nor  can  a  claim 
for  dower  be  made  the  subject  of  a  set-off.  See  Bogardus  v. 
Parker,  7  How.  803,  also  before  noticed. 

Specific  Performance^ — In  relation  to  a  suit  of  this  nature, 
and  as  to  the  duty  of  disclosure  on  the  part  of  persons  dealing 
with  each  other,  and  the  limits  of  that  duty,  see  Bench  v.  Sheldon, 
14  Barb.  66,  though,  in  strictness,  that  case  does  not  relate  to 
real  estate. 

A  parol  contract  for  the  sale  of  lands,  is  absolutely  void  by 
the  Statute  of  Frauds,  and  cannot  be  enforced,  though  there 
may  have  been  a  full  performance  of  it  on  the  part  of  the  vendor, 
and  a  partial  one  on  that  of  the  purchaser.  The  vendor's  only 
remedy  will  be  an  action  for  the  balance  of  the  purchase- 
money.     Thomas  v.  Dickinson,  14  Barb.  90. 

Foreclosure^ — The  purchasing  mortgaged  property  by  the 
mortgagee,  under  an  execution  sale,  will  not  constitute  a  merger; 
nor  can  such  a  defence  be  subsequently  set  up  on  a  foreclosure, 
by  persons  who  have  bought  the  land,  expressly  subject  to  the 
mortgage  sought  to  be  foreclosed.    Reed  v.  Latson,  15  Barb.  9. 

A  mortgagee,  in  New  York,  has  a  right  to  redeem  the  pre- 
mises, on  an  assessment  for  city  purposes,  and  to  add  the  amount 
to  his  mortgage ;  and  a  tender,  not  comprising  that  amount, 
will  be  wholly  insufficient  as  a  defence,  on  a  foreclosure  by  him. 
Brevoort  v.  Randolph,  7  How.  398. 

In  Pattison  v.  Taylor,  8  Barb.  250 ;  1  C.  E.  (K  S.)  174,  (an 
action  for  foreclosure  of  an  old  mortgage,)  various  facts  were 
pleaded  by  the  defendant,  tending  to  raise  a  presumption  that 
such  mortgage  was  satisfied.  Those  allegations  were,  however, 
held  to  be  bad,  and  judgment  given  for  the  plaintiff  in  conse- 
quence, on  the  ground  that  the  defendant  ought  to  have  simply 
pleaded  payment  of  the  mortgage,  and  introduced  any  facts 
tending  to  show  such  payment,  as  matters  of  evidence  on  the 
trial.  This  case  seems,  however,  to  be  somewhat  questionable, 
with  regard  at  least  to  the  extent  to  which  the  above  principle 
was  carried.  See  considerations  on  this  subject  in  a  previous 
chapter,  as  to  the  essential  requisites  of  pleading. 


502  ANSWER. 


§  159.    Counter-Claim,  and  Set-off,  fyc. 

We  now  come  to  the  fourth  head  above  laid  down — viz.,  the 
allegation  by  the  defendant,  of  matter  either  wholly  or  par- 
tially extinguishing  the  plaintiff's  demand,  by  way  of  set-off  or 
counter-claim.  The  law  on  this  subject  has  been  shortly  de-' 
clared  by  the  recent  amendment,  as  before  cited;  the  indis- 
pensable requisites  to  a  valid  counter-claim  now  being — 1,  that 
it  must  be  an  existing  claim  in  favor  of  a  defendant  and  against 
a  plaintiff,  between  whom  a  several  judgment  might  be  ren- 
dered ;  2,  that  it  must  be  a  cause  of  action  arising  out  of  the 
contract  or  transaction  on  which  the  complaint  is  founded,  or 
connected  with  the  subject  of  the  action  ;  or,  3,  that,  in  actions 
arising  on  contract,  any  other  cause  of  action,  arising  also  on 
contract,  and  existing  at  the  commencement  of  the  action,  may 
be  so  set  up.  Any  claims,  either  legal  or  equitable,  or  both,  to 
which  the  above  definitions  apply,  are  now  pleadable  in  the 
nature  of  set-off,  without  regard  to  the  form  of  the  action, 
whether  legal  or  equitable. 

The  previous  statute  law  on  the  subject  of  set-off,  will  be 
found  at  2  R.  S.  354 ;  and  the  numerous  decisions  on  that  mea- 
sure, which  are  cited  in  the  books  of  the  former  practice,  will, 
for  the  most  part,  be  authority  under  the  present,  though  many 
distinctions  heretofore  drawn,  are  now  swept  away,  and  the  defi- 
nition given  as  above  is  now  much  shortened  and  simplified  in 
terms. 

Under  the  Revised  Statutes,  set-off  could  only  be  pleaded  as 
matter  of  defence  ;  and  a  cross  action  was  necessary,  in  order 
to  enable  the  defendant  to  obtain  affirmative  relief,  exceeding 
the  amount  of  the  plaintiff's  demand.  Under  the  Code,  how- 
ever, this  restriction  no  longer  exists,  and  affirmative  relief  is 
now  obtainable  by  the  defendant,  to  any  extent,  provided  his 
right  to  surli  relief  be  established.  See  in  particular  the  recent 
amendment  in  sec.  274.  The  conclusions  to  the  contrary  in 
Wooden  v.  Waffle,  6  Eow.  L45,  1  0.  R.  (N.  S.)  3!J2,  and  the 
restrictions  there  sought  to  be  imposed  on  pleading  in  these 
,  are  therefore  n<>  longer  authority.  The  same  is  the  case 
with  reference  t"  the  doctrine  laid  down  in  Cochran  v.  Webbf  4 
Sandf.  658,  that  an  equitable  defence,  looking  to  affirmative 
relief,  cannot  be  established,  otherwise  than  in  a  cross  action  ; 


ANSWER,  503 

and  likewise  in  Haire  v.  Baker,  1  Seld.  357,  in  relation  to  the 
necessity  of  a  cross  action,  to  enable  a  defendant,  in  an  action 
for  breach  of  covenant,  to  show  mistake  in  the  covenant  itself. 
See  the  subject  of  the  demand  of  affirmative  relief  in  an  answer, 
as  treated  in  a  subsequent  section  of  this  chapter. 

It  may  be  convenient  to  consider  the  cases  in  point  on  this 
subject,  under  the  separate  heads  of  set-off  or  counter-claim, 
generally  considered,  and  counter-claim  as  provided  for  by  the 
Code. 

Set-off  or  Counter-claim  generally  considered.] — The  following 
decisions  under  the  previous  provisions,  are  generally  applica- 
ble to  the  present : 

A  set-off,  when  pleaded,  must  be  pleaded  in  definite  terms, 
and  the  particulars  thereof  not  only  may,  but  must  be  alleged, 
with  precisely  the  same  particularity  as  is  necessary  to  establish 
a  cause  of  action  in  a  complaint.  The  recent  amendment  in 
sec.  149,  seems  to  put  this  beyond  a  doubt,  even  had  it  been 
doubtful  before.  An  indefinite  statement  (such  as  was  used  in 
pleadings  under  the  old  system)  will  no  longer  suffice.  Wig- 
gins v.  Gaus,  3  Sandf.  738;  1  C.  E.  (N.  S.)  117.  See  Ranneij 
v.  Smith,  6  How.  420,  in  which  the  same  general  principles  are 
laid  down ;  though,  under  the  Code  as  it  then  stood,  it  was  held 
that  several  causes  of  set-off  might  be  included  in  one  statement 
of  new  matter,  if  properly  distinguished.  There  can  be  no 
question  that,  as  the  provisions  now  stand,  the  safe  and  proper 
manner  of  alleging  matter  by  way  of  counter-claim,  will  be  to 
allege  that  matter,  precisely  as  it  would  have  been  alleged,  in 
drawing  the  complaint  on  a  cross  action.  This  principle  is  fully 
supported  by  Deiveyv.  Hoag,  15  Barb.  365,  where  it  is  held 
that,  in  an  answer,  setting  up  an  equitable  title  in  bar  of  an 
ejectment,  the  defendant  must  become  an  actor  in  respect  of  his 
claim ;  that  such  answer  must  contain  all  the  elements  of  a  bill 
for  a  specific  performance ;  and  that,  by  it,  he  must  ask  for  and 
obtain  affirmative  relief.  The  answer  in  that  case  was  held  to 
be  defective,  because  the  defendant  did  not  specifically  offer  to 
perform,  nor  ask  that  the  plaintiff  be  required  to  perform,  the 
contract  there  in  question. 

The  set-off  or  recoupment  claimed,  being  in  the  nature  of  an 
affirmative  remedy,  the  defendant  cannot  both  plead  it,  and  also 
maintain  a  cross  action  for  the  same  cause,  at  the  same  time.  If 


504  ANSWER. 

he  do  so,  he  will  be  put  to  his  election  between  the  two  modes 
of  proceeding,  and  will  be  forced  to  abandon  either  the  one  or 
the  other.  Farmers'  Loan  and  Trust  Company  v.  Hunt,  1  C.  R. 
(K  S.)  1  ;  Fabbricotti  v.  Launitz,  3  Sandf.  743  ;  1  C.  R.  (N.  S.)121. 

In  Halsey  v.  Carter,  1  Duer,  667,  the  defendant's  right  to 
make  such  election  freely  is  maintained,  and  it  is  held  that  he  is 
not  bound,  in  his  answer,  to  set  up  a  demand,  which,  from  its 
nature,  is  a  proper  subject  for  counter-claim.  He  may,  as 
before,  elect  to  enforce  its  recovery  in  a  separate  suit,  and  his 
rights  in  this  respect  have  not  been  varied  by  the  Code. 

In  Deming  v.  Kemp,  4  Sandf.  147,  it  was  held,  with  refer- 
ence to  recoupment,  that  damages  cannot  be  recouped,  unless 
they  arise  in  respect  of  the  particular  contract  on  which  the 
action  is  founded.  See  Bogardus  v.  Parker,  7  How.  303,  below 
cited. 

Under  the  Code,  a  partial  counter-claim  is  admissible,  and 
matter,  short  of  a  defence,  may  be  pleaded  by  way  of  recoup- 
ment, in  mitigation  of  damages.  Willis  v.  Taggard,  6  How. 
433  ;  and  not  only  so,  but  the  defendant  is  bound  to  plead  it  in 
that  form.     Houghton  v.  Toionsend,  8  How.  441. 

The  right  to  set  off  a  demand  against  an  assignee,  has  not 
been  effected  by  the  Code,  but  stands  as  it  did  under  the  old 
practice.  When,  therefore,  the  right  of  the  assignee  had  become 
perfect,  before  the  claim  proposed  to  be  set  off  had  arisen,  it 
was  held  that  such  set-off  could  not  be  maintained.  Beckwith 
v.  The  Union  Bank,  4  Sandf.  604;  affirmed  by  the  Court  of  Ap- 
peals, 31st  December,  1853.  See  to  the  same  effect,  in  relation 
to  the  doctrine  that  the  right  of  set-off  does  not  attach,  till  the 
debt  in  question  actually  becomes  due,  notwithstanding  the 
intermediate  insolvency  of  the  debtor,  Keep  v.  Lord,  11  L.  0. 
178  ;  see  also  Bradley  v.  Angel,  3  Comst.  475. 

To  be  pleadable  at  all,  an  equitable  set-off  must  be  such  an 
equity  as  can  be  enforced  by  judicial  action,  not  one  arising 
from  merely  moral  considerations.     Van  Pelt  v.  Boyer,  8-How. 

819. 

Nor  can  :i  fraud,  practised  by  a  person  other  than  the  plain- 
tin;  be  made  the  Bubjed  of  an  equitable  Bet-off,  though  arising 
in  respect  of  the  same  Bubject-matter,  where  there  is  nothing  to 
connect  the  actual  plaintiff  with  such  fraud.  Ileedy.  Latson, 
L5  Barb.  9. 

J  n  Smith  v.  Brigg  ,  0  Barb.  262,  the  court  denied  a  motion 


ANSWER.  505 

that  a  judgment,  satisfied,  and  discharged  of  record,  should  be 
set  off  against  another,  (though  it  was  claimed  that  such  can- 
celled judgment  was  discharged  merely  for  a  particular  purpose, 
and  had  not,  in  fact,  been  paid,)  on  the  ground  that  they  had 
no  power  to  make  such  an  order. 

In  Merritt  v.  Seaman,  2  Seld.  168,  it  was  held  that  a  debt, 
due  from  a  testator,  could  not  be  set  off,  in  an  action  brought 
by  his  executor,  in  his  own  name,  on  the  promissory  note  of 
the  defendant,  though  such  note  was  given  in  respect  of  a  debt 
due  to  the  testator's  estate.  To  be  pleadable,  a  set-off  must  be 
between  the  same  parties,  and  them  alone.  Compton  v.  Green, 
9  How.  228. 

Nor  can  a  person  indebted  to  a  bankrupt,  declared  such  under 
the  act  of  Congress  of  19th  August,  1841,  set  off,  against  that 
indebtedness,  a  demand  against  the  bankrupt,  purchased  after 
he  presented  his  petition  to  be  discharged.  Smith  v.  Brincker- 
hoff,  2  Seld.  305. 

A  widow's  claim  for  dower  is  not  subject  to  a  set-off  for  dam- 
ages, nor  for  moneys  due  from  her,  in  respect  of  the  rents  of 
the  estate  from  which  she  claims  dower.  Bogardus  v.  Parker, 
7  How.  303. 

In  an  action  in  which  a  set-off  is  proper,  any  one  or  more  of 
several  defendants,  jointly  sued,  may,  severally,  or  individually, 
avail  themselves  of  a  set-off,  so  far  as  regards  any  one  or  more 
of  them,  apart  from  the  others.  Parsons  v.  Nash,  8  How.  454. 
See  The  People  v.  Crane,  8  How.  151. 

Set-off  is  a  remedy  of  a  quasi  equitable  nature,  and  rests,  as 
such,  emphatically  in  the  discretion  of  the  court.  This  prin- 
ciple is  fully  laid  down  in  Baker  v.  Hoag,  6  How.  201,  where 
the  court  allowed  one  judgment  to  be  set  off  against  another, 
although  the  parties  to  those  judgments  were  different:  it 
appearing  that  equity  would  be  promoted,  and.  injustice  pre- 
vented by  that  course. 

It  is  clear,  from  the  case  of  Haire  v.  Baker,  1  Seld.  357,  that, 
in  an  action  to  recover  damages  for  a  breach  of  covenant,  it 
would  now  be  competent  for  the  defendant  to  interpose  a  defence, 
that  the  covenant  was  not  binding,  in  that  particular  instance, 
on  the  ground  of  mistake ;  though,  in  the  then  state  of  the  law, 
a  cross  action  for  that  purpose  was  held  to  be  necessary. 

The  principle,  that  the  same  facts  which  would  heretofore 
have  entitled  a  defendant  to  be  relieved  in  equity,  may  be  now 


506  ANSWER. 

set  up  in  bis  answer  as  a  full  defence,  is  clearly  laid  down  in 
Dolson  v.  Pearce,  1  Duer,  142;  10  L.  0.  170. 

In  Owens  v.  Ackerson,  8  How.  199,  it  was  laid  down  that,  in 
proceedings  under  the  Mechanics'  Lien  Law,  a  set-off  may  be 
pleaded,  though  arising  out  of  other  matters  than  those  con- 
nected with  the  contract. 

By  the  last  amendment,  any  claim,  arising  out  of  the  contract 
or  transaction  stated  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action, 
can  be  pleaded  as  a  set-off,  or  rather  as  a  counter-claim,  accord- 
ing to  the  new  phraseology.  The  terms  of  this  subdivision 
are  large  enough  to  comprise  any  cause  of  action  whatever, 
within  the  above  limits,  and  must  therefore  be  considered  as 
overruling,  pro  tanto,  the  previous  provisions,  that  set-off  was 
only  admissible  in  actions  arising  out  of  contract,  and  in  those 
where  the  demand  was  certain  and  liquidated. 

In  other  respects,  however,  and  except  as  regards  different 
causes  of  action  arising  out  of  the  same  transaction,  the  princi- 
ples last  mentioned  seem  unshaken  by  the  recent  amendments. 
In  actions  sounding  in  tort,  a  set-off  in  contract  cannot  accord- 
ingly be  pleaded,  unless  arising  out  of  the  same  transaction.  The 
decision,  therefore,  that,  in  an  action  of  trespass,  the  defendant 
cannot  seek  to  have,  as  a  set-off,  a  money  demand  against  the 
plaintiff,  but  that  his  only  course  is  a  cross-action,  Anon.,  1 
C.  It.  40,  seems  to  be  still  authority.  It  has  been  held  that  a 
judgment  in  a  justices'  court  cannot  be  made  the  subject  of  a 
set-off,  within  five  years  of  its  rendition.  Smith  v.  Jones,  2  C. 
R.  78;  see  sec.  71  of  Code. 

Counter-claim,  as  such.'] — The  cases  above  cited,  under  the 
head  of  Set-off,  are  all,  of  necessity,  applicable  to  a  defence  of 
this  nature,  when  interposed  in  the  peculiar  form,  or  rather 
under  the  peculiar  title  of  counter-claim,  as  prescribed  by  the 
Code,  as  it  now  stands. 

The  term  in  question  lias  been  made  the  subject  of  much 
comment,  in  Beveral  of  the  cases  below  cited,  and  numerous 
attempts  have  been  made  fco  define  its  exact  limits. 

In  /.'"'"'  v.  Maison,  7  Bow.  L21,  it  was  considered  that  a 
claim  of  an  independent  and  hostile  titlo  to  the  property  sued 
for,  might  be  com  idered  as  a  counter-claim,  within  the  moaning 
of  t  he  amendment  in  question. 


ANSWER.  507 

111  Silliman  v.  Eddy,  8  How.  122,  a  counter-claim  is  defined 
to  be  "an  opposition  claim,  or  demand  of  something  due;  a 
demand  of  something  which  of  right  belongs  to  the  defendant, 
in  opposition  to  the  right  of  the  plaintiff." 

In  Gage  v.  Angell,  8  How.  335,  it  was  held  that  the  existence 
of  an  unliquidated  and  unsettled  partnership  account  between 
the  parties,  and  a  claim  of  a  balance  due  on  that  account,  might 
be  interposed  as  a  counter-claim,  in  an  action  upon  a  promissory 
note  for  money  lent. 

In  an  anonymous  case,  11  L.  O.  350,  it  was  held  that,  in  a 
suit  for  a  divorce,  by  the  husband,  it  was  competent  for  the 
wife  to  set  up  adultery  on  his  part,  and  to  ask  for  the  necessary 
affirmative  relief  in  that  respect,  in  her  answer,  by  way  of 
counter-claim. 

In  Dewey  v.  Hoag,  15  Barb.  365,  it  was  held  that  an  answer 
in  the  nature  of  a  bill  for  specific  performance  of  a  contract, 
was  available  as  a  defence  in  ejectment,  if  fully  and  properly 
pleaded. 

The  principle,  that  the  same  facts,  which  would  formerly  have 
entitled  a  defendant  to  be  relieved  in  equity,  may  be  set  up  in 
his  answer,  as  a  full  defence,  is  clearly  laid  down  in  Dobson  V* 
Pearce,  1  Duer,  142,  10  L.  0.  170. 

In  Hinman  v.  Judson,  13  Barb.  629,  it  was  held  that  the 
mortgagor  of  personal  property,  when  sued  for  a  conversion, 
may  claim  his  right  to  redeem,  as  matter  of  defence,  and,  where 
he  has  not  been  foreclosed,  may  mitigate  the  recovery  against 
himself,  by  reducing  the  judgment  to  the  amount  actually  due 
on  the  mortgage. 

In  actions  of  a  legal  character,  any  defence,  whether  legal  or 
equitable,  may  now  be  interposed.  A  suit  in  the  nature  of  an 
injunction  to  restrain  proceedings  at  law,  will  now  therefore  be 
not  merely  unnecessary,  but  unsustainable ;  Hunt  v.  Farmers 
Loan  and  Trust  Company  v.  Rogers,  8  How.  416.  See  likewise 
Dederick  v.  Hoysradt,  4  How.  350,  before  cited  under  the  head 
of  Injunction. 

The  question  therefore  seems  to  be  settled,  1.  that  any  claim  on 
the  part  of  the  defendant  in  the  nature  of  a  set-off,  available 
under  the  former  law  ;  2.  that  any  such  claim,  arising  out  of  the 
contract  or  transaction  sued  upon  by  the  plaintiff,  or  connected 
with  the  subject  of  the  action;  or,  3.  that  in  actions  on  contract, 
any  other  cause  of  action  on  contract  also,  and  existent  at  the 


508  ANSWER. 

commencement  of  the  action,  are  available  as  defences  by  way 
of  counter-claim  :  or  the  proposition  may  be  even  more  shortly 
stated,  viz.,  that  any  defence  which,  under  the  old  practice,  might 
have  been  set  up  by  way  of  set-off,  or,  with  some  slight  modifi- 
cations, any  claim  which,  under  the  same  practice,  might  have 
been  set  up  by  way  of  cross  action,  will  now  be  so  available. 
The  requisition  of  affirmative  relief,  either  in  partial  mitigation, 
or  in  total  extinguishment  of  the  plaintiff's  claim,  seems  to  be 
the  governing  test,  by  which  the  issue  of  counter-claim,  or  no 
counter-claim,  must  in  all  cases  be  tried. 

The  necessity  and  importance  of  such  a  test  being  strictly 
and  rigorously  applied,  in  considering  the  effect  of  an  answer, 
as  to  whether  it  does,  or  does  not  require  a  reply,  is  evidenced 
by  the  long  discussion  that  has  taken  place,  and  the  numerous 
decisions  that  have  been  made  on  this  particular  point,  and 
which  will  be  found  cited  in  the  next  chap.ter,  under  the  head  of 
Eeply.  Numerous  as  those  cases  are,  and  contradictory  as  some 
of  them  appear  to  be,  the  dominant  principle  is,  after  all,  simple 
and  clear.  Matter  alleged  by  way  of  defence,  and  not  looking 
to  affirmative  relief,  is  not  matter  in  counter-claim,  and  requires 
no  reply.  Matter  in  any  wise  looking  to  the  assertion  of  such 
relief  must  be  replied  to,  and,  wherever  there  is  any,  even  the 
slightest  doubt  as  to  the  nature  of  such  matter,  and  whether  it 
may  not  possibly  fall  under  the  latter  category,  a  reply  will  be 
the  only  safe  course.  See  the  whole  subject,  as  further  consi- 
dered in  the  chapter  in  question. 

In  Bogardus  v.  Parker,  7  How.  303,  above  cited,  it  is  held 
that  a  counter-claim,  in  an  action  not  arising  on  contract,  can- 
not be  interposed,  unless  it  arise  out  of,  or  be  connected  with 
the  subject  of  the  transaction  on  which  the  complaint  is  based. 
See  tli<'  s;une  case,  as  before  cited.  See  likewise  Deming  v. 
Eempi  1  Sandf.  147. 

Tin'  by  way  of  counter-claim  looking  to  affirmative 

relief,  an  <>n«T  made  by  the  defendant,  after  the  service  of  his 
■.it,  for  a  balance  admitted  by  that  answer,  will  have  the 
effect  of  extinguishing  the  counter-claim,  if  accepted,  and,  if 
refused,  will  deprive  the  plain  till'  <>!'  his  costs,  should  he  sub- 
lently  recover  less  than  the  amount  of  the  offer.  Schneider 
v.  Jacobi,  I  Duer,  694,  II  L.  0.  220. 

In  making  ach  an  offer  on  the  part  of  the  defendant,  if 
made  before  answer,  be  should  make  the  discharge  of  his  set- 


ANSWER.  509 

off  a  specific  portion  of  that  offer,  and  apparent  on  its  face.  If 
he  omit  this  precaution,  the  offer  will  be  unavailing,  and  the 
plaintiff  will  be  entitled  to  full  costs,  as  though  it  had  not  been 
made,  though  the  judgment  he  obtains  be  not  more  favorable  in 
the  actual  amount.     Buggies  v.  Fogg,  7  How.  324. 

§  1 60.    Demand  of  Relief  by  Answer- 

In  cases  falling  under  the  category  of  counter-claim,  as  de- 
fined in  the  last  section,  and  where  any  thing  in  the  nature  of 
affirmative  relief  is  sought  by  the  answer,  it  seems-  clearly 
necessary,  from  the  cases  above  cited,  and  particularly  from 
those  of  Ilaire  v.  Baker,  Dewey  v.  Iloag,  Gage  v.  Angell,  and 
Anon.,  11  L.  O.  350,  that  such  relief  should  be  specifically  and 
affirmatively  demanded,  in  the  same  mode  in  which  it  would 
have  been  heretofore  necessary  to  demand  it,  in  a  cross  action. 
Nor  is  Cochran  v.  Webb,  ■!  Sandf.  653,  an  authority  to  the  con- 
trary, that  case  having  been  decided  before  the  recent  amend- 
ment, and  proceeding  on  the  principle  that  affirmative  relief 
must  be  affirmatively  sought.  The  same  principle  is  also  fully 
recognized  in  Bridge  v.  Pay  son,  5  Sandf.  210.  See  likewise 
Dobson  v.  Pearce,  1  Duer,  142,  10  L.  O.  170. 

Where,  however,  the  answer  simply  consists  of  matter  in 
defence,  and  affirmative  relief  is  not  sought,  a  prayer  for  gene- 
ral relief  will  be  wholly  unnecessary,  and  even  irrelevant.  See 
Bridge  v.  Payson,  above  cited.  See,  also,  heretofore,  under  the 
head  of  Irrelevant  Matter  in  Pleading. 

§  161.   Defects  in  Answer. 

Insufficiency.] — The  pendency  of  a  prior  suit  for  the  same  cause 
of  action,  in  the  courts  of  another  State,  or  in  the  federal  tribu- 
nals, is  no  defence  to  an  action.  The  Code  has  not  changed 
the  rule  in  this  respect.  Cook  v.  Litchfield,  5  Sandf.  330;  10  L. 
I ).  330.  Affirmed  by  the  Court  of  Appeals,  31st  December, 
1853. 

The  sureties  in  an  undertaking  on  bail,  cannot  question  the 
liability  of  their  principal  to  arrest,  in  an  action  against  them  ; 
and  their  answer  to  that  effect,  if  put  in,  will  be  demurrable  as 
insufficient.     Gregory  v.  Levy,  12  Barb.  610;  7  ITow.  37. 


510  ANSWER. 

The  mere  allegation  that  a  note  sued  on  was  not  made  within 
six  rears  before  the  commencement  of  the  action,  unaccompa- 
nied by  any  allegation  as  to  its  delivery,  was  held  to  raise  an 
immaterial  issue,  and  that  the  plaintiff  was  entitled  to  judg- 
ment, in  Mallory  v.  Lamphear,  8  How.  491. 

A  partv,  whose  acts  prevent  the  performance  of  a  condition 
precedent,  cannot  avail  himself  of  such  non-performance,  as  a 
defence  in  an  action  against  him.    Young  v.  Hunter,  2  Seld.  203. 

A  denial  of  the  jurisdiction  of  the  court,  by  answer,  must 
show  that  the  court  had  no  jurisdiction  when  the  suit  was 
commenced,  or  it  will  be  held  bad  upon  demurrer.  Bridge  v. 
Pay  son,  1  Duer,  614. 

A  number  of  other  cases,  also  bearing  on  this  branch  of 
objection,  will  be  found  in  the  different  portions  of  the  pre- 
ceding chapter,  and  also  in  the  closing  chapters  of  this  book, 
under  the  head  of  Proceedings  before  Reply,  and  Demurrer  to 
Answer. 

Inconsistency.'] — As  a  general  rule,  a  defendant  will  be  per- 
mitted to  set  up  in  his  answer,  as  many  defences  as  he  may 
have,  provided  only  those  defences  be  plainly  distinguished 
and  separately  stated.  Thus,  in  Bridge  v.  Payson,  5  Sandf.  210, 
it  was  held  that  it  is  no  objection  to  an  answer  that,  after 
taking  issue  on  the  material  allegations  of  the  complaint,  it 
alleges,  as  a  defence,  matters  in  abatement;  and  this  conclusion 
seems  clearly  sustainable,  notwithstanding  the  ruling  to  the 
contrary,  in  Gardiner  v.  Clark,  6  How.  449,  which  proceeds 
upon  strict  common  law  principles,  without  regard  to  the  infu- 
sion of  equitable  rules  as  to  pleading,  which  the  Code  has 
clearly  introduced  in  all  cases  whatsoever.  In  Ostrom  v.  Bixby, 
\)  Bow.  57,  it  was  held,  that  a  pica  of  the  Statute  of  Limitations 
nol  inconsistent  with  a  traverse  of  the  plaintiff's  claim  in 
other  matters. 

:-■  the  principle  of  inconsistency  applicable  to  denials  of 
the  plaintiff's  ca  e,  which  it  is  competent  for  the  defendant  to 
make  under  any  circumstances^  to  tic  full  extent,  and  in  con- 
nection with  any  new  matter  whatsoever,  provided   the  same 

be    not    positively    inconsistent    with    SUCh    denial.      Sec,    infru, 

or,    v.  Ro  ■.  3  How.  L98,  Ll-L.  0.843. 

VVhi  i  '.■■  -r.  new  mailer  is  alleged, the  principle  of  in- 

applicable to  averments  in  answers  of  that 
nature. 


ANSWER.  511 

In  an  early  case,  it  was  indeed  held,  that  the  setting  up  of 
several  defences  inconsistent  with  each  other,  is  admissible  in 
an  answer,  provided  only  they  are.  separately  stated.  Anon.,  1 
C.  E.  134.  The  complaint  in  that  case  was  for  assault,  and  the 
defendant  had  answered  non  cul,  son  assault,  and  accord  and 
satisfaction ;  all  of  which  defences  the  court  admitted,  and 
refused  to  compel  the  defendant  to  elect  by  which  he  would 
abide;  and  a  similar  rule  is  broadly  asserted  in  Stiles  v.  Com- 
stoch,  9  How.  48,  and  likewise  in  Lansingh  v.  Parker,  9  Plow. 
288. 

This  principle  seems,  however,  unsustainable,  and  has  been 
directly  impeached  by  the  following  decisions  : 

In  Schneider  v.  Schultz,  4  Sandf.  664,  it  was  held  that,  in  a 
case  of  the  same  description,  the  defendant  will  not  be  permitted 
first  to  deny  the  charge,  and  then  to  set  up  son  assault  demesne. 
So  also  in  Roe  v.  Rogers,  8  How.  356,  an  answer  of  the  same 
description,  which  first  denied  the  whole  complaint,  and  then, 
as  a  further  defence,  set  up  matter  in  justification  of  an 
alleged  assault  and  imprisonment,  was  stricken  out  as  incon- 
sistent. See  also,  the  general  principle,  that  the  allegation  of 
matter  in  avoidance  is  incompatible  with  a  general  denial  of 
the  complaint,  as  before  laid  down,  and  other  cases  cited,  under 
the  heads  of  Slander  and  Libel.  See  likewise  Arthur  v.  Brooks, 
14  Barb.  533. 

The  same  principle  as  to  inconsistent  defences  is  fully  carried 
out,  and  generally  laid  down,  in  Arnold  v.  Dimon,  4  Sandf.  680, 
where  it  was  held,  that  a  carrier  by  water  will  not  be  permitted 
to  answer:  1.  That  he  was  not  the  owner  of  the  vessel;  and, 
2.  That  the  property  shipped  was  delivered  to  the  plaintiff. 

In  the  recent  cases  of  Butler  v.  Wentivorth,  however,  9  How. 
282,  the  general  term  in  the  First  District  have  decided,  that 
a  hypothetical  justification,  is  consistent  with  a  general  denial 
in  slander,  Clerlce,  J.,  dissenting. 

The  doctrine  here  laid  down  seems  very  doubtful,  and  incon- 
sistent with  a  large  majority  of  the  decided  cases,  both  as  to 
the  inconsistency  of  a  denial  and  avoidance  in  the  same  plead- 
ing, and  also  as  to  hypothetical  defences. 

Hypothetical,  alternative,  or  argumentative  defences,  seem 
also,  notwithstanding  the  last  decision,  to  be  clearly  bad,  and 
will  be  held  so.  See  this  principle  laid  down,  and  nume- 
rous cases  cited,  in  the  prior  parts  of  this  chapter,  and  also 


512  ANSWER. 

in  a  previous  one,  under  the  head  of  Essential  Kequisites  of 
Pleading. 

It  seems  indeed  clear  that,  under  the  rule  now  enforced  by 
the  Code,  that  the  facts  of  every  case,  and  nothing  else,  are  to 
be  pleaded ;  allegations  of  facts,  inconsistent  with  each  other,  and, 
therefore,  in  one  aspect  or  the  other,  untrue,  cannot  properly 
be  admissible  under  any  circumstances.  Where,  however,  this 
principle  is  not  directly  involved,  it  is  equally  clear  that,  under 
the  Code,  any  number  of  separate  defences  may  be  set  up,  pro- 
vided only  they  are  separately  stated,  and,  under  the  last 
amendment  of  the  rules,  plainly  numbered.  The  decision  in 
Butler  v.Wentworth,  above  noticed,  is  based  upon  this  right  of 
the  defendant,  but  apparently  carried  too  far. 

Irrelevancy  or  Frivolity .] — In  the  last  place,  and  with  refer- 
ence to  answer  in  general,  the  making  of  either  a  sham,  or  an 
irrelevant,  or  a  frivolous  defence,  must  be  carefully  avoided. 
The  powers  of  the  court,  and  the  rights  of  the  plaintiff  in  the 
former  of  these  respects,  are  greatly  increased  by  the  amend- 
ment of  1851,  in  sec.  152.     It  now  stands  as  follows: 

^j  152.  Sham  and  irrelevant  answers  and  defences  may  be  stricken 
out  on  motion,  and  upon  such  terms  as  the  court  may  in  their  discretion 
impose. 

Sec.  247  provides  as  follows  in  relation  to  frivolous  defences : 

§  247.  If  a  demurrer,  answer,  or  reply,  be  frivolous,  the  party  pre- 
judiced thereby,  upon  a  previous  notice  of  five  days,  may  apply  to  a 
judge  of  the  court,  either  in  or  out  of  court,  for  judgment  thereon,  and 
judgment  may  be  given  accordingly. 

Under  section  152,  as  it  stood  in  the  Code  of  1849,  sham  de- 
fences  only  could  be  stricken  out  on  motion,  and  a  restricted 
con  n  of  the  section  prevailed  in  consequence;  a  con- 

struction, in  fact,  so  restricted,  that  there  is  no  reported  case  of 
relief  b  ing  granted  under  it,  except  one,  afterwards  reversed 
by  the  general  term.  The  decisions  on  the  subject  were  as 
follows : 

In  !>■■■  i    v.  /'■  tt  r,  ■!   Bow.  L56,  2  0.  R.  99,  it  was  held  that  an 

wer,  denying  the  plaintiff's  allegations  on  belief  only,  could 

qoI  be  stricken  oul  a ;  a  sham  answer,  and  that  the  section  now 

in  questi lid  not  necessarily  include  the  case  of  a  false  an- 

r;   for,   if  BO,  the  truth  of  an  answer  might  be  tested  on 


ANSWER.  513 

special  motion.  It  is  only,  the  learned  judge  said,  "  where  an 
answer  takes  issue  upon  some  immaterial  averment  of  the  com- 
plaint, or  sets  up  new  or  irrelevant  matter,  that  it  can  properly 
be  called  a  sham  defence."  See,  also,  Temple  v.  Murray,  6 
How.  329. 

It  did  not  necessarily  follow,  either,  that,  under  the  late  mea- 
sure, a  clearly  frivolous  answer  could  be  stricken  out  as  false. 
It  must  have  been  shown  to  be  put  in  in  bad  faith,  and  to  be 
so  impertinent  or  grossly  frivolous,  that  the  court  could  not  but 
see  that  the  object  was  to  delay  or  perplex  the  plaintiff,  instead 
of  presenting  a  defence.  Unless  this  could  be  clearly  estab- 
lished, the  only  proper  course,  under  that  measure,  was  to  move 
for  judgment  upon  such  answer,  as  frivolous,  under  sec.  247. 
Darrow  v.  Miller,  5  How.  247  ;  3  C.  E.  241.  See  also  Brown  v. 
Jenison,  below  cited.  Similar  views  are  likewise  held  in  Rae  v. 
The  Washington  Mutual  Insurance  Company,  6  How.  21  ;  1  C. 
E.  (N.  S.)  185,  a  decision  under  the  section  last  referred  to. 

In  Mier  v.  Cariledge,  4  How.  115,  the  court,  at  special  term, 
somewhat  departed  from  the  principle  of  not  testing  the  truth 
of  an  answer  on  special  motion,  (though  fully  acknowledging 
that  principle  in  the  main,  and  citing  the  case  of  Broome  County 
Bank  v.  Lewis,  18  Wendell,  565,  in  support  of  it.)  It  appeared 
to  the  judge,  in  that  case,  that,  from  the  wording  of  the  answer 
itself,  a  real  issue  was  not  intended.  On  that  ground,  affidavits 
were  allowed  to  be  read,  and  it  was  held  that  the  defence  in 
the  answer  was  a  sham  defence,  and  a  motion  to  strike  it  out 
as  such  was  accordingly  granted,  with  costs,  though  without 
prejudice  to  the  defendant's  thereafter  applying  to  the  court, 
for  leave  to  put  in  a  defence  in  good  faith.  The  defendants- 
appealed  from  that  decision  to  the  general  term,  reported  8 
Barb.  75,  2  C.  R.  125,  and  the  judgment  in  question  was  re- 
versed, on  the  ground  that  the  answer,  having  been  verified 
under  the  Code,  and  there  having  been  some  ground  to  believe 
that  it  had  been  put  in  in  good  faith,  ought  not  to  be  stricken 
out  on  motion.  In  Tracy  v.  Humphrey,  5  How.  155,  3  C.  E. 
190,  the  authority  of  the  last  decision  was  confirmed,  and  it 
was  distinctly  held  that  a  verified  answer  could  not  be  stricken 
out,  as  false,  on  affidavits.  The  same  conclusion  is  likewise 
come  to  in  Catlin  v.  McGroarty,  1  C.  E,  (N.  S.)  291. 

The  above  decisions  amounted  almost  to  a  practical  prohibi- 
tion of  motions  under  this  section,  as  unamended.  Now,  how- 
33 


514  ANSWER. 

ever,  the  case  is  different,  and  relief  on  the  ground  of  irrelevant, 
as  well  as  sham  defences,  being  obtainable  under  this  provision 
for  the  future,  applications  under  it  may  be  expected  to  become 
more  frequent. 

The  principle,  however,  that  a  verified  answer  cannot  be 
stricken  out  as  sham,  is  as  fully  maintained  under  the  section, 
as  it  stands  now,  as  it  was  before  the  amendment.  That  prin- 
ciple may  now  be  considered  as  fully  established,  by  the  above, 
in  connection  with  the  following  further  decisions,  viz.  Miln  v. 
Vose,  4  Sandf.  660  ;  Caswell  v.  Bushnell,  14  Barb.  393,  reported, 
also,  as  Sherman  v.  Bushnell,  7  How.  171.  And,  even  when  the 
answer  is  unverified,  the  court  will  be  indisposed  to  strike  it 
out  as  sham,  on  allegation  of  its  falsity,  provided  the  issue 
taken  by  it  be  complete,  and  sufficient  to  raise,  what  amounted, 
under  the  old  system,  to  the  general  issue. 

In  Mier  v.  Cartledge,  above  cited,  it  was  laid  down,  at  special 
term,  that  an  unverified  answer  consisting  of  denials  only,  might 
be  stricken  out  as  false,  on  its  falsity  being  clearly  shown  by 
affidavit,  and  that,  in  this  instance,  the  court  would  depart  from 
its  usual  custom  of  not  trying  the  main  issue  in  the  case  on 
affidavits  ;  and,  in  the  reversal  of  that  case  by  the  general  term, 
this  principle  was  not  impeached.  The  same  view  has  since 
been  taken,  and  an  unverified  answer  stricken  out  as  false  on 
affidavits  of  its  falsity,  in  ConJelin  v.  Vandervoort,  7  How.  483. 
It  is  likewise  maintained  in  Nichols  v.  Jones,  6  How.  355,  in  rela- 
tion to  cases  where  the  plaintiff's  affidavits  are  not  contradicted 
by  the  defendant,  but  not  otherwise.  See  also  Ostrom  v.  Bixby, 
9  How.  57. 

In  other  cases,  however,  this  has  been  doubted.  In  White  v. 
Bennett,  7  How.  59,  it  was  held  that  the  plaintiff,  by  merely 
verifying  his  complaint,  subsequent  to  the  service  of  an  unve- 
rified answer  consisting  of  denials  only,  could  not,  on  that  veri- 
fication, move  to  strike  out  the  answer  as  false.  Leave  was,  how- 
ever,  given  to  amend  bis  complaint,  so  as  to  obtain  a  fresh  and 
verified  answer  from  the  defendant.  The  same  principle  is  sup- 
ported by  Winne  v,  Sickles,  9  Il<>w.  217. 

In  Living  \on  v.  Finkle,  8  How.485,  it  is  distinctly  laid  down 
that  .-in  unverified  answer,  merely  taking  issue  on  the  plaintiff's 
allegations,  cannot  be  stricken  out  as  sham  or  false.  It  is  not 
sham,  because  it  merely  denies  the  plaintiff's  case.  It  is  not 
false,  because  it  does  not  assert  any  thing.      It  is   a  mere  nega- 


ANSWER.  515 

tive  pleading,  and,  as  such,  is  allowable,  and  cannot  be  im- 
peached on  affidavit,  or  otherwise  than  on  a  regular  trial  of  the 
issue  then  formed.  It  is  in  the  power  of  the  plaintiff  to  pre- 
vent such  a  defence,  by  verifying  his  complaint.  This  decision 
has  the  greater  force,  because  it  is  made  under  the  expressed 
conviction,  that  the  answer  there  in  question  was  really  false  in 
fact,  though  admissible  as  a  pleading.  See  also  Winne  v.  Sickles, 
9  How.  217. 

In  Caswell  v.  Bushnell,  and  Sherman  v.  Bushnell,  above  refer- 
red to,  it  is  also  distinctly  laid  down  that  an  answer,  consisting 
of  denials  only,  cannot  be  stricken  out  as  sham  or  false,  and 
that  objections  on  the  above  ground  are  only  applicable  to  state- 
ments of  new  matter.  This  principle  appears  to  be  clearly  sus- 
tainable, and  to  be  decisive  of  the  question. 

Although,  as  above  noticed,  the  powers  of  the  court  are  now 
greatly  extended  by  the  amendment  of  sec.  152,  in  relation  to 
irrelevant  defences,  relief  of  this  description  can  seldom  be 
counted  upon,  except  in  extreme  cases.  Thus,  an  answer,  im- 
perfect in  point  of  form,  but  the  facts  contained  in  which  might 
have  formed  a  valid  defence,  if  properly  stated,  was  refused  to 
be  stricken  out.  Alfred  v.  Watkins,  1  C.  E.  (N.  S.)  343.  Thus 
also,  an  answer  similarly  void  under  the  Code  of  1851,  as  con- 
taining a  general,  instead  of  a  specific  denial  of  the  plaintiff's 
case,  was  likewise  refused  to  be  stricken  out,  in  Seward  v.  Miller, 
6  How.  312 ;  and  an  answer,  merely  containing  a  denial  of 
notice  to  the  endorser,  in  an  action  on  a  promissory  note,  was 
similarly  treated  in  Garvey  v.  Fowler,  -1  Sandf.  665,  10  L.  O.  16,. 
it  being  further  held,  in  that  case,  that,  even  when  manifestly 
put  in  for  delay,  the  answer  must  be  false  in  fact,  and  known 
to  be  so  to  the  defendant,  in  order  to  justify  its  being  treated 
as  "sham." 

Where,  however,  a  manifestly  evasive  answer  is  put  in,  de- 
nying knowledge  or  information  sufficient  to  form  a  belief,  of 
tacts  within  the  defendant's  knowledge,  or  means  of  knowledge, 
such  answer  will  be  bad.  Mott  v.  .Burnett,  1  C.  E.  (N.  S.)  225; 
Hance  v.  Bemming,  1  C.  E.  (N.  S.)  201,  both  before  cited;  and, 
in  the  latter  case,  an  answer  of  this  description  was  expressly 
stricken  out  as  sham,  under  the  power  above  cited. 

Answers  of  a  similar  description  have  also  been  stricken  out 
in  Flcury  v.  Boget,  5  Sandf.  64:6,  9  How.  215  ;  Flammer  v.  Kline, 
9  How.  216,  and  Fleury  v.  Brown,  9  How.  217.'  See  likewise 
Ostrom  v.  Bixby,  9  How.  57. 


516  ANSWER. 

The  same  result  was  arrived  at,  on  similar  grounds,  in  Nichols 
v.  Jones,  6  How.  355  ;  that  decision  proceeding,  however,  in  part 
on  the  view  taken  in  that  case,  .as  to  the  power  of  the  court  to 
test  the  truth  of  an  unverified  denial,  upon  affidavits,  the 
soundness  of  which  has  been  questioned,  and  apparently  over- 
ruled, as  before  stated.  The  following  general  principles,  in 
relation  to  defects  in  pleading,  are  laid  down  in  the  course  of 
the  opinion  pronounced :  "  Upon  the  whole,  I  think,  the  va- 
rious provisions  of  the  Code  on  this  subject  are  consistent,  and 
cover  the  whole  ground  precisely,  neither  more  nor  less.  If  an 
answer,  otherwise  good,  is  loaded  with  unnecessary  and  redun- 
dant matters,  the  plaintiff's  counsel  should  move,  under  section 
160,  to  have  such  matters  expunged.  If  doubts  are  entertained 
as  to  the  sufficiency  in  law  of  the  answer,  and  the  opinion  of 
the  court  is  desired,  it  must  be  obtained  by  demurrer.  If,  how- 
ever, any  defence  is  palpably  insufficient,  a  motion  for  judg- 
ment, on  the  ground  of  frivolousness,  is  the  proper  course ;  and, 
if  the  matters  of  defence  can  be  shown  to  be  clearly  false,  a 
motion  to  strike  out  as  sham,  will  reach  the  evil.  These  four 
modes  cover  all  defects  in  an  answer." 

Similar  views  to  the  above  are  also  laid  down  in  Harlow  v. 
I  In  mil  ton,  6  How.  475. 

The  following  definition  of  sham  and  frivolous  answers  re- 
spectively, is  given  by  the  Superior  Court,  in  the  case  of  Brown 
v.  Jenison,  3  Sandf.  732,  1  C.R.(K  S.)  156,  and  will  be  of  use, 
in  pointing  out  the  objectionable  particulars  to  be  guarded 
against,  as  above.  "A  sham  answer  or  defence,  is  one  that  is 
false  in  fact,  and  not  pleaded  in  good  faith.  It  may  be  per- 
fectly good  in  form,  and,  to  all  appearance,  a  perfect  defence. 
Section  152  provides  for  striking  out  such  answers.  A  frivolous 
answer  is  one  that  shows  no  defence,  conceding  all  that  it 
alleges  to  be  true.  Each  may  be  stricken  out  on  motion,  but 
it  is  under  differenl  provisions  of  the  Code,." 

In  Hull  v.  Smith,  I  Duer,  649,  8  How.  Ill),  the  above  defini- 
tion is  fully  approved  by  the  general  term  of  the  same  court, 
with  the  qualification  that,  when,  the  answer  is  frivolous,  as 
a  whole,  and  qo1  in  pari  only,  a  demurrer,  or  a  motion  for  judg- 
ment under  sec.  247  j  will  be  the  proper  course;  and,  in  the 
latter  case,  the  motion  must,  uot  be  that  the  answer  be  "stricken 
out."  It-  must,  on  the  contrary,  remain  on  the  record,  with  a 
view  to  the  review  of  the  decision  on  appeal,  if  taken.  Where, 
however,  there  is  the  slightest  question  as  to  the  frivolity  of 


PLAINTIFF'S  COURSE  ON  ANSWER.  517 

the  pleading,  demurrer,  not  motion,  as  above,  will  be  the  only 
proper  course.     See  also  Miln  v.  Vose,  4  Sandf.  660. 

In  Howard  v.  The  Franklin  Marine  and  Fire  Insurance  Com- 
pany, 9  How.  45,  an  answer,  setting  up  a  clearly  untenable  de- 
fence, on  the  defendant's  own  showing,  was  stricken  out. 

In  Lane  v.  Gilbert,  9  How.  150,  where  an  answer  in  slander 
contained  no  direct  defence,  but  merely  stated  matter  in  miti- 
gation, it  was  held  that  a  motion  for  judgment  on  the  ground 
of  frivolity  was  the  proper  course. 

The  questions  as  to  what  will  or  will  not  be  considered  as  a 
frivolous  defence,  have  been  before  fully  entered  upon,  and  the 
different  cases  cited,  in  the  preceding  portions  of  the  present 
chapter,  and  also  in  the  preceding  division  of  the  work,  under 
the  subject  of  the  essential  requisites  of  pleading ;  and  the  con- 
siderations in  relation  to  the  proper  form  of  the  application  in 
such  cases,  will  hereafter  be  treated  of,  under  the  proper  head  : 

General  Remarks.'] — It  follows  of  course  from  the  foregoing 
observations,  that  both  immateriality  and  frivolity  in  defence, 
are  defects  against  which  the  pleader  must  carefully  guard.  It 
seems  scarcely  possible  to  imagine  a  case,  proper  for  defence  at 
all,  in  which  these  objections  cannot  be  fully  obviated,  by  a 
careful  attention  to  the  phraseology  employed,  and  by  recourse 
to  the  most  extensive  powers  of  traversing  the  plaintiff's  case 
on  information  and  belief  only,  before  alluded  to  in  the  earlier 
portion  of  the  present  chapter. 


CHAPTER    V. 


COURSE  OF  THE  PLAINTIFF,  ON  RECEIPT  OF  THE  DEFEND- 
ANT'S PLEADING. 


General  Examination  of  Answer.'] — The  first  thing  to  be  looked 
to  by  the  plaintiff,  on  receipt  of  the  adverse  pleading,  is  to  see 
whether  it  be  regular  in  point  of  form,  and,  in  the  case  of 
answer,  duly  and  properly  verified.  See  previous  chapter,  as 
to  formal  requisites  of  pleading.      The  pleading,  if  defective 


518  -PLAINTIFF'S  COURSE  ON  ANSWER. 

must  be  returned  forthwith,  as  there  pointed  out ;  and  any  objec- 
tions, on  that  or  any  other  formal  grounds,  must  be  taken  at 
once,  or  else  the  right  to  do  so  may  be  considered  as  waived. 

§  162.    Motion  to  satisfy  admitted  Part  of  Demand. 

The  next  point  for  consideration,  where  answer  is  put  in,  is 
as  to  whether  that  answer  does  or  does  not  contain  an  admission, 
that  part  of  the  plaintiff's  claim  is  just,  or  that  the  defendant 
has  property  in  his  hands  belonging  to  another  party,  on  which 
admission  an  application  may  be  grounded,  that  he  may  be 
ordered  to  satisfy  such  admitted  portion,  or  to  hand  over  or 
deposit  such  property  admitted  to  be  in  his  hands,  as  provided 
by  the  recent  amendment  in  sec.  244. 

The  provisions  of  that  section,  in  relation  to  these  remedies, 
and  the  mode  of  their  enforcement,  are  analogous  to  those  pro- 
vided by  the  former  practice,  and  run  as  follows : 

When  it  is  admitted  by  the  pleading  or  examination  of  a  party,  that 
he  has  in  his  possession,  or  under  his  control,  any  money  or  other  thing 
capable  of  delivery,  which,  being  the  subject,  of  the  litigation,  is  held 
by  him  as  trustee  for  another  party,  or  which  belongs  or  is  due  to 
another  party,  the  court  may  order  the  same  to  be  deposited  in  court, 
or  delivered  to  such  party,  with  or  without  security,  subject  to  the 
further  direction  of  the  court. 

Whenever,  in  the  exercise  of  its  authority,  a  court  shall  have  ordered 
the  deposit,  or  delivery,  or  conveyance,  of  money  or  other  property,  and 
the  order  is  disobeyed,  the  court,  besides  punishing  the  disobedience, 
as  for  contempt,  mav  make  an  order,  requiring  the  sheriff  to  take  the 
money  or  thing,  and  deposit,  deliver,  or  convey  it,  in  conformity  with 
the  direction  of  the  court. 

When  the  answer  of  the  defendant  admits  part  of  the  plaintiff 's  claim 
to  be  just,  the  court,  on  motion,  may  order  such  defendant  to  satisfy 
that  part  of  thfi  claim,  and  may  enforce  the  order  as  it  enforces  a  pro- 
visional remedy. 

The  above  provisions  had  been,  to  a  certain  extent,  antici- 
pated by  the  I  Tracy  v.  Humphrey,  before  noticed,  where 
the  court  bad  already  given  judgment  to  a  plaintiff,  for  portions 
<,f  his  demand  Dot  denied  by  the  defendant;  and  the  remedy 
then  extended,  in  a  Bomewhal  questionable  manner,  as  the  law 
then  :  tood,  ha   aow  assumed  a  certain  .and  available  shape. 

It.  is,  however,  only  appropriate  to  clear  and  unquestionable 


PLAINTIFF'S  COURSE  ON  ANSWER.  519 

cases,  and  not  to  those  in  which  there  exists  any  doubt  or  con- 
test. Thus,  in  Dolan  v.  Petty,  4  Sandf.  673,  where  the  answer 
traversed  the  plaintiff's  claim  for  work  and  labor,  adding  that 
the  work  done  was  not  worth  more  than  a  certain  sum,  the 
court  refused  to  order  the  payment  of  that  amount,  because  the 
answer  did  not  admit  a  specific  sum  to  be  due. 

Where,  too,  the  defendant,  prior  to  answering,  had  made  an 
offer  to  allow  judgment  for  the  amount  admitted  in  the  answer, 
which  offer  was  refused,  a  motion  of  the  above  nature  was 
denied,  on  the  ground  that  the  practice  was  still  unsettled; 
under  which  circumstances,  the  court  would  leave  the  plaintiff 
to  his  usual  and  ascertained  remedies.  Smith  v.  Olssen,  4  Sandf. 
611.  And  such  seems  still  to  be  the  case,  to  a  great  degree,  no 
decisions  appearing  in  the  recent  reports,  which  bear  upon 
the  subject. 

Where,  however,  the  plaintiff's  right  is  clear,  the  remedy  will 
be  both  proper  and  available.  Thus,  in  Roberts  v.  Law,  4  Sandf. 
642,  where  the  defendant  admitted  partnership  funds  to  be 
in  his  hands,  which,  on  his  statement,  belonged  to  the  repre- 
sentatives of  his  deceased  partner,  he  was  ordered  to  pay  over 
such  funds,  though  the  affairs  of  the  firm  were  still  unsettled. 
The  plaintiffs  were  required,  however,  to  give  security,  to  con- 
tribute towards  payment  of  outstanding  claims,  if  established, 
and  also  their  share  of  future  expenses;  and  the  defendant  was 
allowed  to  retain  sufficient  to  cover  claims  against  the  deceased 
partner,  contested  in  the  suit  itself. 

In  Burhaus  v.  Casey,  4  Sandf.  706,  funds  in  the  hands  of  the 
defendant,  intrusted  to  his  charge  for  payment  to  a  third  party, 
were  ordered  to  be  deposited  in  court,  or  paid  to  the  third  party 
in  question,  within  ten  days;  and,  in  the  same  case,  4  Sandf. 
707,  the  same  defendant  was  held  arrestable,  in  respect  of  his 
neglect  to  perform  his  required  duties  in  that  respect. 

§  163.  Motion  on  ground  of  Defects  in  Answer. 

The  answer  should  next  be  carefully  examined,  with  a  view 
to  ascertain  whether  it  contain  any  allegations  liable  to  be 
stricken  out  for  redundancy,  or  irrelevancy,  or  which  the  plain- 
tiff may  require  to  be  made  more  definite  or  certain  by  amend- 
ment, under  the  provisions  of  sec.  160. 

This  subject  has  also  been  fully  entered  upon,  in  the  introduc- 


520  PLAINTIFFS  COURSE  ON  ANSWER. 

tory  chapter  of  this  portion  of  the  work.  The  proceeding  for 
that  purpose  must,  as  there  mentioned,  be  taken  speedily,  and 
before  the  time  originally  allowed  for  replying  expires,  or  the 
right  to  take  it  will  be  gone.  See  Corlies  v.  Delaplaine,  2  Sandf. 
680,  2  C.  E,  117. 

The  above  proceeding  refers  more  peculiarly  to  the  insertion 
of  irrelevant  matters  in  a  relevant  defence,  and  to  the  purga- 
tion of  the  record  in  this  respect ;  but  it  is  also  possible  that 
the  whole  of  the  answer,  or  the  whole  of  any  ground  of  defence 
taken  therein,  may  be  sham  or  irrelevant.  In  this  case  the 
remedy  of  the  plaintiff  is  different.  A  motion  under  sec.  160 
will  not  meet  the  case,  but  the  application  must  be  made  under 
sec.  152,  as  commented  upon  at  the  close  of  the  last  chapter. 
If  the  whole  answer  be  stricken  out  as  irrelevant,  the  plaintiff's 
course  appears  to  be  to  sign  judgment  thereupon,  under  sec. 
246,  as  for  want  of  an  answer,  on  affidavit,  that  no  answer  has 
been  received,  except  the  one  stricken  out ;  nor  can  the  defend- 
ant put  in  any  further  defence  under  such  circumstances,  unless 
on  leave  of  the  court  specially  obtained,  inasmuch  as,  the  an- 
swer being  stricken  out,  his  right  to  amend  as  of  course  is  gone. 
Aymar  v.  Chase,  1  C.  E.  (K  S.)  141. 

If,  though  not  sham  or  irrelevant,  the  demurrer  or  answer  be 
frivolous,  the  course  then  to  be  pursued  will  be  to  move  for 
judgment,  under  the  provisions  for  that  purpose  contained  in 
sec.  247,  as  cited  in  the  last  chapter. 

The  form  and  mode  of  entry  of  judgment  so  obtained,  will 
be  hereafter  considered,  and  the  cases  in  relation  thereto  cited, 
under  the  head  of  Judgment  by  Default.  Amotion  under  that 
section  is  absolutely  necessary,  for  obtaining  relief  under  the 
above  state  of  circumstances;  for,  however  frivolous  the  plead- 
ing may  be,  it  cannot  be  disregarded  as  a  nullity.  Corning  v. 
Eaight,  1  0.  E.  72  ;  Hartnessv*  Bermett,  3  How.  289,  ICE. 
Swift  v.  Ih  Witt,  3  How.  289;  6  L.  O.  314;  1  C.  E.  25; 
Nbbl  v.  Trowbridge,  I  0.  R.  38;  Stokes  v.  Hagar,  7  L.  O.  16 ;  1 
( '.  R.  84;  Strout  v.  Outran,  7  How.  36;  Griffin  v.  Cohen,  8  How. 
451.  Nor  '•■in  the  plaintiff  BO  treat  a  demurrer,  put  in  jointly 
with  :hi  answer  to  the  same  cause  of  action,  though  either  the 
demurrer  ox  the  answer,  if  bo  put  in,  is  clearly  bad.  His  only 
course,  tinder  those  circumstances,  will  be  to  move  to  strike  out 
either  the  demurrer  or  the  answer,  or  that  the  defendant  may 
be  compelled  to  eli  01  by  which  defence  he  will  abide.  Spdlnian 
v.  Weider,  5  How.  5  ;  Slocum  v.  Wheeler,  4  How.  373. 


PLAINTIFF'S  COURSE  ON  ANSWER.  521 

Although,  under  Eule  40  of  the  Supreme  Court,  motions  on 
the  ground  of  partial  irrelevancy  can  only  be  made  within 
twenty  days  after  service  of  the  pleading  objected  to,  and,  if 
not  made,  such  objections  will  be  considered  as  waived ;  a 
motion  to  strike  out  an  answer  altogether,  as  irrelevant  in  toto, 
or  as  sham  or  frivolous,  may  be  made  at  any  time  before  trial. 
If  it  be  false  or  frivolous,  the  time  of  the  court  or  jury  ought 
not  to  be  taken  up  in  hearing  it.  Miln  v.Vose,  4  Sandf.  660. 
See  likewise  Stokes  v.  Hagar,  7  L.  0.  16,  1  C.  R  84,  above  cited. 
It  may  be  made,  too,  within  the  twenty  days  allowed  for  an 
amendment,  though,  if  the  pleading  be  subsequently  amended, 
it  will  then  be  denied  without  costs.  Currie  v.  Baldwin,  4 
Sandf.  690. 

A  motion  on  the  ground  of  irrelevancy  will  be  admissible 
where  statements  of  new  matter,  not  constituting  a  counter-claim, 
and  not  amounting  to  a  defence,  are  made  in  the  answer,  and 
such  matter  is  partial,  or  relates  to  one  only  of  several  defences. 
When,  on  the  contrar}r,  such  new  matter  applies  to  the  whole 
case,  a  motion  under  sec.  247  will  be  proper.  Quin  v.  Chambers, 
1  Duer,  673,  11  L.  0.  155;  Lane  v.  Gilbert,  9  How.  150.  De- 
murrer will  not  lie  to  new  matter  in  an  answer,  not  constituting 
a  counter-claim.  See  this  subject  fully  treated  in  the  next 
chapter,  and  the  cases  there  cited. 

A  joint  answer  of  parties,  severally  as  well  as  jointly  inte- 
rested, unless  verified  by  all,  will  be  no  answer,  as  regards  those 
who  omit  to  verify,  and  will  be  stricken  out  as  such.  Andrews 
v.  Storms,  5  Sandf.  609  ;  Alfred  v.  Wathins,  1  C.  R  (K  S.)  343. 
The  answer  of  a  married  woman,  in  her  own  person,  and  not  by 
her  next  friend,  was  also  taken  off  the  file  as  no  answer,  in 
Henderson  Y.Easton,  8  How.  201. 

The  questions  as  to  what  will  or  will  not  be  considered  a  fri- 
volous pleading,  have  been  before  considered.  Motions  of  the 
above  nature,  whether  under  sec.  152  or  sec.  247,  are  only  appli- 
cable to  extreme  cases,  and  not  to  those,  in  which  the  frivolity 
or  irrelevancy  of  the  pleading  objected  to  is  in  any  wise 
doubtful. 

A  merely  insufficient  pleading  must  be  demurred  to,  and 
cannot  be  stricken  out  as  frivolous,  though  clearly  bad  for  in- 
sufficiency. Scovell  v.  Howell,  2  0.  E.  33  ;  Alfred  v.  Waikms,  1 
C.  R  (N.  S.)  343  ;  White  v.  Kidd,  4  How.  68 ;  Miln  v.  Vose, 
4  Sandf.  660,  and  various  other  cases  before  cited.     It  is  only 


522  PLAINTIFF'S  COURSE  ON  ANSWER. 

where  the  pleading  is  palpably  groundless  and  untenable,  and 
put  in  for  the  purposes  of  vexation  and.  delay,  that  the  court 
will  exercise  the  high  power  of  expunging  it  from  the  record. 
Nee/us  v.  Kloppenburgh,  2  C.  R.  76.      See  also  Smith  v.  Shufelt, 

3  C.  R.  175  ;  Seward  v.  Miller,  6  How.  312.  Nor  will  an  answer 
be  so  stricken  out,  if  it  deny  any  one  material  allegation  in  the 
complaint,  however  insufficient  it  may  be  in  other  respects.  See 
Davis  v.  Potter,   4  How.  155,   2  C.  R.  99 ;  Garvey  v.   Fowler, 

4  Sand f.  565;  10  L,  O.  16,  and  numerous  other  cases,  before 
cited  under  the  head  of  Answer.  And  such  a  denial  is  admissi- 
ble, of  facts  essential  to  the  plaintiff's  recovery,  even  though  not 
formally  alleged  in  the  complaint.  Lord  v.  Gheeseborough,  4  Sandf. 
696,  1  C.  R,  (N.  S.)  322.  In  order  to  ground  such  an  applica- 
tion, and  warrant  a  judgment  under  the  above  section,  "  the  case 
should  be  entirely  clear,  palpable  on  the  statement  of  the  facts, 
and  requiring  no  argument  to  make  it  more  apparent."  Bae  v. 
The  Washington  Mutual  Insurance  Company,  6  How.  21,  1  C.  R. 
(N.  S.)  185.  See  also  Miln  v.  Vose,  above  cited,  and  Hidl  v. 
Smith,  1  Duer,  649,  8  How.  149. 

The  application  to  strike  out  a  pleading  as  frivolous,  must 
be  for  "judgment,"  under  the  terms  of  section  247,  as  above 
cited.  It  cannot  be  granted,  on  a  notice  of  motion  that  an 
"order"  will  be  applied  for.  Darroiv  v.  Miller,  5  How.  247,  3 
C.  R.  241 ;  JRae  v.  The  Washington  Mutual  Insurance  Company, 
above  cited.  See  also  Bentley  v.  Jones,  4  How.  335,  3  C.  R.  37; 
and  King  v.  Stafford,  5  How.  30.  The  motion  must  be  for 
judgment,  and  not  that  the  answer  be  stricken  out.  It  must, 
on  the  contrary,  remain  upon  the  record.  Hull  v.  Smith,  1  Duer, 
649,  8  How.  149.  No  affidavit  is  necessary  for  the  purpose  of 
that  application,  which  is  made  upon  the  pleadings  alone; 
lli'. ugh  it  would  be  prudent  to  be  prepared  with  formal  proof 
of  service  of  those  pleadings,  in  order  to  the  bringing  on  of 
the  motion,  in  case  the  opposite  party  should  not  appear.  See 
Darrow  \.  Miller,  above  cited. 

In  Woodworth  v.  Bellows,  4  How.  24,  1  C.  R.  129,- cited  in  the 
In. ;  chapter,  judgment  was  given  for  the  plaintiff  at  once,  upon 
an  answer  merely  directed  to  the  adjudication  of  equities  be- 
tween co-defendants,  and  nol  setting  up  any  defence  whatever, 
jainsl  ili<-  plaintiff's  right  to  relief. 

The  form  of  b  notice  of  motion  for  judgment  as  above,  will 
be  found  in  the  Appendix.    Of  r-ourse,  the  above  observations, 


PLAINTIFF'S  COURSE  ON  ANSWER.  523 

and  the  cases  above  cited,  are  equally  applicable  to  the  case  of 
a  frivolous  reply,  and  to  the  application  for  judgment  thereon, 
as  indeed  expressly  provided  by  the  section  in  question. 

Objections  of  the  above  nature  cannot  be  split  up  into  seve- 
ral motions.  They  must  all  be  embodied  in  the  original  notice, 
or  relief  will  not  be  granted  on  a  subsequent  application.  Thus, 
in  Desmond  v.  Wool/,  6  L.  O.  389,  1  C.  R  49,  a  motion  to  take 
a  demurrer  off  the  file  as  frivolous,  was  denied,  a  previous 
motion  to  set  it  aside  as  irregular  having  been  made  and  failed. 
All  possible  objections  to  a  pleading  should  accordingly  be  well 
considered,  before  moving  to  set  it  aside  on  any  one  ground; 
and,  if  more  than  one  appear,  the  demand  for  relief  should  be 
shaped  accordingly,  and  with  sufficient  comprehensiveness. 

§  164.    A?nendrne?it  of  Complaint,  and  other  Proceedings 
before  final  Joinder  of  Issue. 

If  none  of  the  above  objections  exist  to  the  defence  set  up, 
or  if  any  of  them  be  taken  and  fail,  the  plaintiff,  before  taking 
the  decisive  course  of  either  demurring  or  replying  to  that 
defence,  where  admissible,  or  of  allowing  the  issue  to  go  to 
trial,  as  it  stands,  should  carefully  look  over  the  complaint  a 
second  time,  and  consider  whether  any  new  matter  alleged  by 
the  defendant,  has  so  far  altered  the  statement  of  circumstances 
under  which  issue  will  have  to  be  joined,  as  to  render  it  expe- 
dient for  him  to  amend  his  complaint ;  or  whether  any  other 
reasons  exist,  which  may  render  such  a  course  advisable,  such 
as  omissions  on  his  part  to  put  his  case  in  the  best  possible  light, 
facts  subsequently  come  to  his  knowledge,  or  other  considera- 
tions of  an  analogous  nature.  The  present  is  the  point  at  which 
a  full  consideration  of  this  subject  is  peculiarly  fitting,  because, 
if  he  permit  the  twenty  days  allowed  for  reply,  after  the  service 
of  his  adversary's  pleading,  to  elapse  without  amending,  it  will 
be  no  longer  competent  for  him  to  do  so  as  of  course  there- 
after, and  a  special  application  to  the  court  for  leave  for  that 
purpose  will  be  necessary.  See  Snyder  v.  White,  6  How.  321, 
and  other  cases  before  cited.  Of  course  the  above  period  of 
twenty  days  is  spoken  of,  with  the  necessary  reservation  as  to 
the  effect  of  service  by  mail,  where  admissible,  in  doubling 
that  period.     The  effect  of  an  amendment,  in  putting  back  the 


524  TLAINTIFF'S  COURSE  ON  ANSWER. 

case,  as  it  were,  to  the  period  of  the  original  service  of  the 
complaint,  and  reopening  it,  both  with  reference  to  the  nature 
of  the  answer  which  may  be  put  in  by  the  defendant,  and  the 
time  which  will  be  allowed  to  him  for  that  purpose,  will  not  be 
forgotten. 

If  the  defendant  make  an  offer  to  the  plaintiff,  after  the  ser- 
vice of  his  answer,  it  gives  the  latter  an  absolute  right  to  the 
ten  days  allowed  to  him  by  the  Code;  and  no  proceedings  can 
be  taken  against  him,  until  the  ten  days  expire,  or  notice  of 
acceptance  be  served.  Walker  v.  Johnson,  8  How.  240.  See 
also  Pomroy  v.  Hulin,  7  How.  161. 

The  right  of  a  party  to  amend  his  pleading  is,  as  a  general 
rule,  absolute,  unless  it  be  palpably  apparent  that  the  amend- 
ment is  made  for  the  purpose  of  delay.  See  this  subject  fully 
treated,  and  numerous  cases  cited  in  a  previous  chapter,  treating 
of  amendment  of  pleadings  by  the  moving  party. 

Other  Proceedings,  before  Reply  or  final  Joinder  of  Issued] — In 
Groshons  v.  Lyons,  1  C.  K.  (N.  S.)  348,  it  was  held  that,  where 
an  answer  of  another  action  pending  has  been  put  in  by  the 
defendant,  it  will  be  irregular  for  the  plaintiff  to  reply  to  such 
answer ;  and  that  the  proper  practice  will  be  for  him  to  apply 
at  once  for  a  reference  upon  that  particular  point,  the  result  of 
which  will  dispose  of  the  preliminary  question.  See  also  Farm- 
ers' Loan  and  Trust  Company  v.  Hunt,  1  C.  R.  (N.  S.)  1. 

If  the  plaintiff  do  not  consider  any  amendment  to  be  neces- 
sary, and  is  satisfied  to  let  the  cause  go  to  issue,  on  the  plead- 
ings, as  they  are,  the  defendant's  demurrer,  when  ta'ken,  will 
have  to  come  on  for  argument  as  an  issue  of  law,  in  due  course, 
and  in  the  first  instance,  and  before  the  trial  of  issues  of  fact,  if 
such  issues  be  raised  collaterally  in  other  portions  of  the 
pleadings.  The  measures  for  this  purpose  will  be  hereafter 
considered. 

A  question  is  raised  in  the  Farmers'  Loan  and  Trust  Company 
v.  //"/</,  I  ( '.  H.  (N.  S.)  I,  as  to  whether  the  same  course  ought 
not  to  !"•  pursued,  where  the  defendant  lias  demurred  by  an- 
r;  but  tli''  soundness  of  this  view  appears  doubtful,  inas- 
much  as,  an  issue  of  fact  being  necessary  to  be  tried  in  this 
e,  in  order  to  make  the  objection  itself  apparent,  there  seems 
no  reason  why  the  whole  of  such  issues  should  not  be  disposed 
of  simultaneously,     [f  the   facts  necessary  to  ground  the  de- 


PLAINTIFF'S   COURSE   ON  ANSWER.  525 

murrer  be  admitted  by  the  reply,  the  question  might  probably 
then  be  held  to  become,  de  facto,  an  issue  of  law,  and  to  be 
triable  as  much. 

If  the  defence  be  by  answer,  the  first  point  to  be  considered 
is,  as  to  whether  such  answer  may,  or  may  not  be  demurred  to 
for  insufficiency,  under  the  power  given  for  that  purpose,  in 
sec.  153;  the  second,  as  to  whether,  under  the  provisions  of 
that  section,  it  does  or  does  not  require  a  reply:  both  which 
subjects,  and  the  course  to  be  adopted  thereupon,  will  be  con- 
sidered in  the  next  chapter. 

§  165.  Discontinuance. 

Before  proceeding,  however,  to  this  branch  of  the  subject,  it 
may  not  be  superfluous  to  remark  that,  if  the  defence  set  up 
be  so  complete  as  to  leave  the  plaintiff  no  chance  of  success,  it 
is  competent,  and  would  be  highly  advisable  for  him  to  discon- 
tinue his  cause,  at  this  point,  and  before  issue  is  finally  joined, 
in  order  to  avoid  the  increase  of  expense  which  that  step  will 
entail.  The  amount  of  costs  payable  by  him  in  such  event, 
will  appear  hereafter,  in  the  chapter  devoted  to  the  considera- 
tion of  that  subject ;  and  the  different  cases,  showing  .that  he 
cannot  discontinue,  without  payment  of  all  which  the  defendant 
can  then  claim,  will  there  be  cited.  No  particular  form  is  requi- 
site for  the  notice  of  discontinuance,  but  it  should  of  course  be 
in  writing,  be  duly  and  properly  served,  and  be  accompanied 
with  a  tender  of  the  full  amount  of  costs  and  disbursements 
then  actually  due,  as  above  referred  to.  It  is  usual,  and  will  be 
always  advisable,  to  obtain  at  the  same  time  a  consent  from  the 
adverse  party  to  dismiss  the  complaint  without  costs,  and  to 
obtain  and  enter  the  usual  order  thereon,  in  order  that  the 
records  of  the  court  may  be  duly  discharged  of  the  suit,  and 
that  no  question  may  arise  thereafter  on  the  subject.  The 
defendant  indeed  will  usually,  and  ought,  in  all  cases,  to  make  a 
positive  requirement  to  this  effect,  as  that  the  suit  should  be 
duly  discharged  is  even  more  his  interest  than  that  of  the  plain- 
tiff. An  order  must  in  fact  be  entered,  where  the  discontinu- 
ance is  necessary  for  the  purpose  of  sustaining  a  second  suit. 
See  next  chapter,  and  cases  there  cited. 

In  Coming  v.  Smith,  2  Seld.  82,  it  was  held  incumbent  upon 
the  plaintiff  in  foreclosure,  to  dismiss  his  bill  as  against  an 


526  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

alleged  prior  encumbrancer,  erroneously  made  a  party  by  him, 
unless  he  believed,  and  was  willing  to  take  the  responsibility  of 
showing,  that  the  interest  of  such  encumbrancer  arose  in  fact 
subsequent  to  his  mortgage. 

When  an  equity  suit  has  been  continued  by  bill  of  revivor 
and  supplement,  the  plaintiff  cannot  subsequently  discontinue, 
without  payment  of  the  costs  of  both  suits  from  the  beginning. 
Fisher  v.  Hall,  9  How.  259. 

If  a  suit  be  improperly  brought  in  the  name  of  a  married 
woman,  a  discontinuance  may  be  compelled,  if  that  fact  appear, 
upon  her  separate  examination,  according  to  the  old  chancery 
practice.     Rusher  v.  Morris,  9  How.  266. 

A  notice  of  discontinuance,  unaccompanied  by  the  payment 
of  the  defendant's  costs,  is  an  absolute  nullity,  and  will  be  of 
no  effect  whatever.  See  hereafter  under  the  head  of  Costs,  and 
the  cases  there  cited. 


CHAPTER    VI. 


OF  REPLY  OR  DEMURRER  TO  ANSWER,  AND  OF  THE  DEFENDANT'S 
PROCEEDINGS  THEREON,  WHERE  ADMISSD3LE. 

§  166.   General  Considerations. 

The  provision  of  the  Code  with  respect  to  these,  the  respon- 
sive pleadings  on  the  part  of  the  plaintiff,  to  any  new  matters 
set  up  in  the  answer,  is  contained  in  section  153,  and  runs  as 
follows: 

.'  i  53.  When  the  answer  contains  new  matter  constituting  a  counter- 
claim, ili'-  plaintiff  may,  within  twenty  days,  reply  to  such  new  matter, 
(Leii)ing  generally  or  ipecifically  each  allegation  controverted  by  him, 
or  any  knowledge  <>r  information  thereof  sufficient  to  forma  belief; 
and  I  llege,in  i  i din    \  and  concise  language,  without  repetition, 

any  new  matter,  ool  incon  istent  with  the  complaint  constituting  a  de- 
fence to  uch  new  matter  in  the  answer ;  it  he  may  demur  to  ihe  same 
for  insufficiency,  tating  in  his  demurrer  the  grounds  thereof,  and  the 
plaintiff  may  di  mur  to  one  oi  more  of  everal  counter-claims  s-ct  up  in 
the  answer,  and  reply  to  the  residn  , 

The  alteration  effected  by  the  last  amendment  in  this  respect 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.  527 

is  important,  as,  under  the  previous  Codes,  including  that  of 
1851,  the  statement  of  any  new  matter  whatever  in  the  answer, 
constituting  a  defence,  involved  the  necessity  of  a  reply  on  the 
part  of  the  plaintiff,  in  order  to  the  due  joinder  of  issue  in 
regard  to  such  new  matter.  Under  the  present  section,  such 
reply  is  only  necessary,  where  the  new  matter  so  set  up  con- 
stitutes a  counter-claim.  In  relation  to  other  matter  set  up  in  the 
answer,  it  is  provided  by  sec.  168,  as  now  amended,  that  "the 
allegation  of  new  matter  in  the  answer,  not  relating  to  a  coun- 
ter-claim, is  to  be  deemed  controverted  by  the  adverse  party, 
as  upon  a  direct  denial  or  avoidance,  as  the  case  may  require." 
The  letter  of  this  last  section  seems  clearly  to  relieve  the  plain- 
tiff from  the  necessity  of  a  reply,  in  any  case  where  no  counter- 
claim is  made,  and  to  provide  for  the  trial  of  an  implied,  instead 
of  an  expressed  issue,  upon  any  new  matter,  first  raised  by  the 
answer ;  and,  that  such  is  the  practice,  seems  now  settled  by  a 
preponderating  series  of  decisions  below  cited. 

The  question  as  to  what  will  or  will  not  be  considered  a 
counter-claim,  has  been  already  fully  considered  in  the  chapter 
on  answer.  In  Roscoe  v.  Maison,  7  How.  121,  the  court  held 
that,  where  a  reply  had  been  actually  put  in,  and  impeached 
for  want  of  proper  verification,  the  plaintiff,  on  the  motion  for 
that  purpose,  could  not  deny  that  he  was  bound  to  reply.  In 
the  same  case,  a  disposition  was  shown,  to  consider  every  allega- 
tion hostile  to  the  plaintiff's  claim,  as  being  in  the  nature  of  a 
counter-claim.  In  Malinger  v.  Lusk,  6  How.  480,  the  same 
learned  judge  contended  at  great  length,  and  with  great  elabo- 
ration, that  a  demurrer  for  insufficiency  would  lie  to  an  answer 
consisting  of  denials  only,  (the  form  of  denial  used  being 
clearly  objectionable,)  and  that  an  answer  of  that  nature  might 
and  ought  properly  to  be  so  disposed  of;  and  Noxon  v.  Bentley, 
7  How.  316;  and  Seward  v.  Miller,  6  How.  312,  seem  to  favor 
the  same  construction. 

See  also  Hopkins  v.  Everett,  6  How.  159 ;  3  C.  R.  150.  Wisner 
v.  Todd.,  9  How.  143,  lays  down  too  the  same  doctrine,  in  relation 
to  new  matter  not  constituting  a  counter-claim.  Bogardus  v. 
Parker,  7  How.  303,  is  also  referred  to  in  the  opinion  in  Salinger 
v.  Lush,  but,  when  examined,  that  case  seems  to  be  clearly  dis- 
tinguishable from  the  latter,  the  allegations  there  demurred  to, 
and  which  demurrer  was  allowed,  being  practically  in  the  nature 
of  a  counter-claim. 


528  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

The  counter  propositions,  viz.,  that  an  answer,  consisting  of 
denials  only,  or  which  merely  alleges  matter  in  defence  not 
constituting  a  counter-claim,  according  to  the  definitions  before 
given,  effects  a  complete  joinder  of  issue,  express  as  to  the  mat- 
ters denied,  and  implied,  as  to  those  alleged  by  way  of  defence  ; 
that  an  answer  of  this  nature  can  neither  be  demurred  nor  re- 
plied to :  and  that,  if  interposed,  such  a  demurrer  or  reply  will 
be  stricken  out ;  are  distinctly  laid  down,  and  appear  to  be 
conclusively  settled  by  the  following  series  of  decisions,  viz. : 
Thomas  v.  Ilarrop,  7  How.  57  ;  Bogardus  v.  Parker,  7  How.  303  ; 
Loomis  v.  Borshvmer,  8  How.  9  ;  SilUman  v.  Eddy,  8  How.  122. 
(in  which  the  doctrine  laid  down  in  Roscoe  v.  Maison,  viz.,  that. 
on  a  question  of  verification,  the  plaintiff  is  precluded  from  de- 
nying that  he  was  bound  to  reply,  is  expressly  dissented  from ;) 
Putnam  v.  Be  Forest,  8  How.  146;  Williams  v.  Upton,  8  How. 
205 ;  /Simpson  v.  Loft,  8  How.  231 ;  Roosa  v.  Saugerties  and 
Woodstock  Turnpike  Road  Company,  8  How.  238  ;  Quin  v.  Cham- 
bers, 1  Duer,  673 ;  11  L.  O.  155. 

The  practice  in  this  respect  may  therefore  be  fairly  considered 
as  settled.  There  are,  however,  many  cases,  in  which  the  exact 
limits,  as  to  what  will  or  will  not  constitute  a  counter-claim, 
may  still  be  looked  upon  as  doubtful.  The  governing  test 
under  these  circumstances,  would  seem  to  be  that,  as  to  whether 
affirmative  relief  is  or  is  not  claimable  by  the  defendant.  Where 
such  is  the  case,  directly  or  indirectly,  or  even  when  there  is  any 
doubt  on  the  subject,  the  omission  to  reply  will  be  unadvisable, 
if  not  unsafe.  Where,  on  the  contrary,  the  allegations  of  the 
defendant  are  clearly  and  exclusively  defensive,  and  their  ten- 
dency is  merely  to  abate  the  plaintiffs  title  to  relief,  and  no  fur- 
ther,  the  putting  in  a  reply  will  clearly  be  as  inexpedient  as  it 
would  Id'  unnecessary. 

Whether  the  operation  of  the  amended  section  as  it  now 
ids,  is,  in  all  oases,  beneficial,  admits  of  more  doubt.  It 
amounts,  in  fact,  t"  b  complete  departure  from  the  system  so 
positively  insisted  <>n  in  other  portions  of  the  Code,  viz.:  that 
every  question  should  now  he  tried  on  an  express,  and  not  an 
implied,  issue;  and  it  presents  the  additional  inconsistency  of 
abolishing  the  general  issue  ;it  once,  and  enforcing  it  by  actual 
statutory  enactment,  at  another  stage  of  the  pleadings  in  the 
same  action, 

There  are  many  cases,  in  which  these  peculiar  provisions  may 
work  very  unequally,  and  even  be  productive  of  actual  hardship. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.       529 

The  Code  provides,  and  most  beneficially  provides,  that,  where 
the  plaintiffs  allegations  in  his  complaint  are  not  controverted 
by  the  answer,  he  is  relieved  from  the  necessity  of  proving  them 
on  the  trial ;  a  rule,  equitable  in  itself,  and  of  the  greatest  con- 
venience, with  regard  to  the  due  and  speedy  administration  of 
justice.  There  are,  however,  numerous  instances,  in  which  the 
defendant,  though  not  making  any  thing  strictly  in  the  nature 
of  a  counter-claim,  may  yet  by  his  answer  set  up  an  affirmative 
defence,  which,  if  proved,  will  wholly  extinguish  the  plaintiff's 
title  as  to  relief;  for  instance,  pleas  of  payment,  accord  and 
satisfaction,  a  release  by  deed,  &c.  &c.  Under  the  Code,  as  it 
stood  before  the  last  amendment,  both  parties  were  put  upon 
equal  terms  ;  under  this  state  of  circumstances,  both  plaintiff 
and  defendant  were  equally  bound  to  admit  or  deny  the  facts 
in  the  adverse  pleading ;  and  if,  when  the  latter  stated  in  his 
answer  a  complete  affirmative  defence,  the  former  omitted  to 
controvert  that  defence,  the  controversy  was  at  an  end  pro 
tanto,  and  the  defendant  was  then  relieved  from  the  necessity 
of  proving  facts  that  his  adversary  was  unable  to  controvert. 
The  amendment  wholly  abolishes  this  convenient  and  highly 
equitable  rule,  and  places  the  two  parties,  under  these  circum- 
stances, on  an  unequal  and  somewhat  unfair  footing,  relieving 
the  one  from  the  burden  of  proving,  and  holding  the  other  to 
strict  proof  of  facts  which  his  adversary  is  unable  to  controvert. 

Another  instance  may  be  mentioned,  in  which,  in  practice 
the  system  has  been  found  to  work  unequally.  A  suit  was 
brought,  in  the  case  alluded  to,  for  the  price  of  goods  sold  and 
delivered.  The  vendors,  in  that  case,  had  agreed  to  take  the 
note  of  a  third  party  in  payment  for  those  goods,  being  induced 
to  do  so  by  representations  on  the  part  of  the  purchaser,  which 
turned  out  to  be  untrue,  and  which,  as  they  contended,  were 
fraudulently  made. 

It  was  heretofore,  and  still  is,  clearly  competent  for  parties 
standing  in  this  position,  to  waive  the  tort,  and  sue  on  the  con- 
tract of  the  purchaser,  reserving  their  right  to  introduce  evidence 
of  the  fraud  alleged  to  have  been  practised  upon  them,  in  avoid- 
ance of  the  defendant's  plea  of  payment,  if  made. 

It  is  clear  that  the  measure  of  proof,  in  such  a  case,  would  be 
less  strict  than  in  one  where  the  fraud  itself,  and  not  the  con- 
tract out  of  which  that  fraud  arose,  was  made  the  gravamen  of 
the  action ;  and  that  an  equitable  view  of  the  whole  transactioa 
34 


530  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

might,  under  these  circumstances,  be  fairly  taken,  both  by  the 
court  and  the  jury,  on  evidence  which,  in  strictness,  would  be 
insufficient  to  sustain  a  verdict  in  tort. 

The  case  now  in  question  stood  in  this  position,  and  presented 
the  peculiar  and  anomalous  feature,  that  the  main  issue,  upon 
which  the  whole  case,  in  fact,  turned,  was  not  merely  not 
expressed,  huh  could  not  be  expressed,  upon  the  pleadings,  under 
the  Code,  as  it  now  stands,  as  interpreted  by  the  decisions  before 
cited ;  and  the  case,  had  it  proceeded  to  trial,  would  have  been, 
necessarily  and  unavoidably,  tried  on  an  issue,  which  nowhere 
appeared,  and  which  could  not  appear,  on  the  actual  pleadings. 

It  is  singular,  too,  that,  on  the  last  amendment,  section  154, 
which  clearly  points  to  the  pleadings  being  brought  to  a  final 
and  definite  issue,  by  allegations  admitted  or  denied  on  both 
sides,  according  to  the  Code,  as  it  stood  before  the  recent 
changes,  has  been  left  wholly  unamended.  In  Williams  v. 
Upton,  8  How.  205,  and  Quin  v.  Chambers,  1  Duer,  673,  11  L. 
0.  155,  the  courts  have  supplied  that  defect,  by  a  construction 
of  s.  154  in  harmony  with  the  last  amendment.  In  the  latter 
case,  the  rule  is  laid  down  as  follows:  "Section  154,  to  be 
sensible,  must  now  be  construed  as  speaking  of  new  matter,  to 
which  the  plaintiff  has  a  right  to  reply  or  demur  at  his  election. 
It  must  be  construed  and  applied,  as  if  the  word  counter-claim, 
instead  of  the  word  defence,  was  contained  in  it."  In  Wisner  v. 
Teed,  9  How.  143,  this  section  was  considered  by  the  court  as 
controlling  s.  153,  and  as  authorizing  a  demurrer  to  new  matter 
in  an  answer,  of  any  description ;  but  this  case  seems  clearly 
overruled  by  those  before  considered. 

In  cases  of  gross  insufficiency  in  the  answer,  a  motion  for 
judgment  under  s.  247,  may  possibly  afford  relief,  under  this 
state  of  circumstances. 

§  107.   Demurrer  to  Answer. 

The  law  on  the  subject  of  demurrer  to  answer  is,  in  a  general 
point  of  view,  the  same  us  thai,  as  of  demurrer  to  complaint,  the 
chapter  on  which  head  should  accordingly  be  referred  to.  The 
scope  of  the  former  is,  however,  of  a  more  restricted  nature, 
inasmuch  as  it  will  only  lie  for  insufficiency;  the  other  five 
head.-:  of  objection,  pointed  out  in  section  141,  as  cited  in  that 
chapter,  being  inapplicable  to  this  stage  of  the  action. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.        531 

Demurrer,  at  this  stage,  is  subject  to  precisely  the  same 
general  conditions  as  demurrer  on  the  part  of  the  defendant. 
The  grounds  must  be  distinctly  stated,  and  the  facts  in  relation 
to  the  answer,  or  particular  ground  of  defence  demurred  to, 
must  not  be  traversed,  so  as  to  create  an  issue  of  fact  on  the 
same  allegation.  Thus,  in  Clark  v.  Van  Beusen,  3  C.  R.  219, 
averments,  first,  that  the  plaintiff  had  no  knowledge  or  infor- 
mation as  to  allegations  contained  in  the  answer;  and,  second, 
that  such  allegations  contained  no  fact,  constituting  any  defence; 
were  held  to  be  bad,  as  regarded  the  latter  portion  of  the  sen- 
tence, such  portion  being  in  effect  a  demurrer,  without  admit- 
ting the  allegations  demurred  to,  but,  on  the  contrary,  raising 
an  issue  of  fact  thereon,  and  thus  falling  within  the  general 
principles  on  that  subject,  as  before  laid  down. 

If  a  demurrer  of  this  description  be  partial  in  its  nature, 
intrinsically  considered,  its  being  entitled  at  the  commencement 
as  a  demurrer  to  the  whole  answer,  will  not  have  the  effect  of 
extending  its  operation  to  portions  of  that  answer  not  comprised 
within  the  objections  actually  taken,  by  way  of  admission  of 
facts,  or  otherwise.  Matthews  v.  Beach,  Court  of  Appeals,  12th 
April,  1853;  reversing  5  Sandf.  256. 

The  cases  in  which  a  demurrer  to  answer  will  now  be  wholly 
inapplicable,  under  the  recent  amendment  of  s.  153,  have  been 
cited,  and  the  matter  fully  considered,  in  the  last  section.  The 
question  of  what  will  or  will  not  be  considered  an  insufficient 
answer,  has  also  been  previously  discussed,  and  authorities 
adduced,  in  the  chapter  on  that  pleading,  under  the  head  of 
Insufficiency,  and  likewise  under  the  general  head  of  Essential 
Requisites  of  Pleading. 

The  following  cases  were  chiefly  decided  under  the  Code  of 
1849,  and,  therefore,  do  not  affect  the  principle  above  laid 
down,  that  a  demurrer  to  answer  will  no  longer  lie',  except  in 
respect  of  new  matter  constituting  a  counter-claim ;  or,  where 
those  decisions  are  more  recent,  the  point  appears  not  to  have 
been  raised,  and  the  parties  to  have  been  content  to  have  the 
judgment  of  the  court  with  regard  to  the  intrinsic  merits  of  the 
objection  taken,  without  regard  to  the  formal  mode  of  its 
taking : 

Demurrer  will  not  lie  to  part  of  an  entire  ground  of  defence. 
Cobb  v.  Frazee,  4  How.  413,  3  C.  R.  43,  before  cited,  under  the 
head  of  Demurrer.     See,  likewise,  Watson  v.  Husson,  1  Duer, 


532  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

242.  So,  also,  in  Smith  v.  Greenin,  2  Saudf.  702,  it  is  laid  down 
that  a  plaintiff  can  demur  to  an  answer,  only  for  defects  in  re- 
spect of  the  new  matter  set  up  by  way  of  avoidance.  He  can- 
not demur  thereto  in  respect  of  irrelevant  and  redundant 
matter,  or  in  respect  of  indefinite  or  uncertain  allegations.  His 
remedy,  in  those  cases,  is  by  motion  under  sec.  160 :  nor  will  a 
demurrer  lie,  in  respect  of  an  omission  to  deny  allegations  in  a 
complaint,  as  prescribed  by  sec.  149.  If  not  denied,  the  matter 
must,  under  sec.  168,  be  taken  as  true.  Of  course,  in  both 
these  cases,  a  motion,  under  sec.  160,  to  strike  out  the  matter 
objected  to,  would  have  been  the  defendant's  proper  remedy. 
See  other  decisions  to  a  similar  effect  cited  in  the  previous 
chapters. 

A  long  and  elaborate  discussion  on  the  subject  of  demurrer 
to  answer,  will  be  found  in  the  recent  case  of  Fry  v.  Bennett,  5 
Sandf.  54,  9  L.  0.  330,  1  C.  E.  (N.  S.)  238,  decided  by  the 
general  term  of  the  Superior  Court,  and  by  which  the  au- 
thority of  Smith  v.  Greenin,  above  cited,  is  fully  confirmed.  In 
the  course  of  the  opinion  of  the  court,  delivered  by  Duer,  J., 
the  following  general  principles  are  laid  down:  "  If  those  parts 
of  the  answer  which  are  covered  by  the  demurrer,  tender  a 
plain  issue  on  any  material  allegation  in  the  complaint,  or  set 
up  a  valid  defence,  the  demurrer  must  be  overruled ;  while,  on 
the  other  hand,  it  must  be  allowed,  if  the  issues  which  are 
formed  are  wholly  immaterial,  or  the  defences  set  up  are  insuffi- 
cient in  law."  "An  answer  is  deemed  insufficient  in  the  sense 
of  the  Code,  not  only  where  it  sets  up  a  defence  which  is 
groundless  in  law,  but  when,  in  the  mode  of  stating  a  defence, 
otherwise  valid,  it  violates  those  primary  and  essential  rules  of 
pleading,  which  the  Code  has  studiously  retained.  Allegations 
of  mitigating  circumstances  were  held  to  be  demurrable  in  that 
particular  case,  such  allegations  forming  part  of  an  attempted 
justification,  not  sufficiently  pleaded.  If  matter  of  this  last  de- 
scription 1"'  pleaded,  it  ought  distinctly  to  appear  that  it  was 
introduced  for  that  purpose  onlyj  and  not  relied  on  in  bar  to  the 
action,  otherwise  demurrer  will  lie  It  was  also  held  that  the 
omission  t>>  demur  to  portions  of  the  answer,  containing  matter 
of  this  nature,  hut  no  defence  to  the  action  in  general,  formed 
no  ground  of  objection  to  the  demurrer  as  put  in;  and,  likewise, 
that  the  que  tion  as  to  whether  a  publication  is,  or  is  not  privi- 
leged, may  properly  be  raised  on  demurrer. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.        533 

In  Newman  v.  Otto,  4  Sandf.  668,  10  L.  0.  14,  it  was  held,  on 
similar  grounds  to  those  laid  down  in  Fry  v.  Bennett,  as  above 
cited,  that  matter  pleaded  in  mitigation  only,  is  not  a  defence, 
either  in  whole  or  in  part,  and  is  therefore  not  a  subject  of  de- 
murrer, nor  is  the  plaintiff  bound  to  traverse  such  matter  in 
his  reply.  See,  likewise,  to  the  same  effect,  Matthews  v.  Beach, 
5  Sandf,  256.  Nor  is  this  ground  affected  by  the  reversal  of 
that  decision  by  the  Court  of  Appeals,  12th  April,  1853,  which 
proceeds  on  others,  wholly  independent  of  it. 

In  Hyde  v.  Conrad,  5  How.  112,  3  C.  E.  162,  a  general  de- 
murrer, that  "  the  facts  stated  in  the  answer  did  not  constitute 
a  sufficient  defence,"  was  upheld,  as  a  sufficient  statement  of  the 
grounds  of  demurrer  for  insufficiency.  The  answer  in  that 
case,  was  simply  the  old  plea  of  "plene  administravit,"  which, 
as  before  stated  under  the  head  of  Answer,  was  held  in  that 
ease,  and  also  in  Belden  v.  Knowlton,  unreported,  to  be  no  de- 
fence at  all.  The  same  doctrine  is  laid  down  in  Anibal  v.  Hun- 
ter, 6  How.  255  ;  1  C.  E.  (N.  S.)  403 ;  and  Arthur  v.  Brooks,  14 
Barb.  533. 

If,  however,  an  objection  exist  to  the  answer,  and  be  not 
stated  amongst  the  grounds  of  demurrer,  it  cannot  be  raised  on 
the  argument;  the  plaintiff  will,  on  the  contrar}',  be  confined  to 
the  objections  specifically  taken.  Kneiss  v.  Seligman,  5  How. 
425 ;  8  Barb.  439. 

Before  the  recent  amendment  of  sec.  153,  it  was  held  to  be 
competent  for  the  plaintiff  to  demur  to  a  denial  in  the  answer. 
Hopkins  v.  Everett,  6  How.  159 ;  3  C.  E.  150.  A  conjunctive 
denial  of  three  separate  allegations  was  there  held  to  be  bad: 
"The  denial  should  have  been  of  each  charge  disjunctively,  if 
the  defendant  intended  to  put  the  whole  of  them  in  issue."  See 
also  to  the  same  effect,  Salinger  v.  Lush,  7  How.  430 ;  and 
Wisner  v.  Teed,  9  How.  143.  Under  the  amended  section,  this 
course  is  now  inadmissible,  as  above  shown.  A  motion  for 
judgment,  under  sec.  247,  would  seem,  therefore,  to  be  the 
proper  course  under  a  similar  state  of  circumstances. 

In  Lewis  v.  Kendall,  6  How.  59 ;  1  C.  E.  (N.  S.)  402,  a  de- 
murrer to  answer  in  slander  was  allowed,  on  the  ground  of  such 
answer  being  hypothetical.  See,  likewise,  Sayles  v.  Wooden,  6 
How.  84;  1  C.  E.  (N.  S.)  409;  Buddington  v.  Davis,  6  How. 
401 ;  Arthur  v.  Brooks,  14  Barb.  533.  In  the  same  cases,  argu- 
mentative statements,  and,  in  the  last  of  them,  the  setting  up 


534  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

matter  in  avoidance,  without  admitting  that,  but  for  such  avoid- 
ance, the  action  could  be  sustained,  were  likewise  held  to  be 
demurrable  defects. 

In  The  People  v.  Van  Rensselaer,  8  Barb.  189,  a  demurrer  to 
answer  was  allowed,  on  the  ground  that  a  simple  allegation  of 
adverse  possession  was  bad,  as  against  the  people,  in  an  action 
brought  by  them  for  recovery  of  real  property ;  and  that  the 
facts  of  such  adverse  possession,  or  of  an  adverse  title,  must  be 
specially  pleaded.  This  case  is,  however,  overruled  by  The 
People  v.  Arnold,  4  Comst.  508.  See  heretofore,  under  the  heads 
of  Answer,  and  Limitations. 

In  Seivard  v.  Miller,  6  How.  312,  it  was  held  that  an  answer, 
containing  a  general,  instead  of  a  specific  denial  of  the  plaintiff's 
case,  as  required  by  the  Code  of  1851,  was  insufficient,  and 
demurrable  as  such.  The  former  practice  is,  however,  restored 
by  the  last  amendment,  and  a  general  denial  is  now  admissible, 
as  before  noticed. 

An  answer,  assuming  to  answer  the  whole  complaint,  but 
which  only  showed  a  defence  to  part,  was  held  bad  upon  de- 
murrer, in  Thumb  v.  Walrath,  6  How.  196 ;  ICE.  (N.  S.)  316. 

In  Wilson  v.  Robinson,  6  How.  110,  a  demurrer  was  allowed 
to  an  answer  in  false  imprisonment,  it  appearing  that  the  arrest 
complained  of  had  been  made,  without  jurisdiction  having  been 
duly  acquired  by  the  officer  who  issued  the  warrant. 

In  Gregory  v.  Levy,  12  Barb.  610 ;  7  How.  37,  it  was  held 
that  the  sureties  on  a  bail  -  bond  were  estopped  from  denying 
the  liability  of  their  principal  to  arrest,  and  a  demurrer  to  an- 
swer was  allowed  on  that  ground. 

Where  a  material  issue  is  tendered  by  the  pleadings,  as  they 
stand,  a  demurrer  cannot  be  allowed,  however  improbable  the 
defence  may  appear,  in  relation  to  the  proofs  to  be  adduced  on 
the  trial.     Dimon  v.  Bridges,  8  How.  16. 

In  Tlr  People  v.  Banker,  8  How.  258,  a  demurrer  to  an  an- 
swer alleging  a  tender,  was  allowed;  the  allegations  in  relation 
to  the  amount  and  nature  of  such  tender  being  defective. 

On  the  argument  of  a  demurrer  to  answer,  it  is  competent 
for  the  defendant  to  go  behind  it,  and  attack  the  complaint  as 
defective  J  but  the  grounds  of  his  attack  must  be  such,  as  would 
have  entitled  bim  to  a  judgment,  had  he  elected  to  demur  in- 
stead of  answering.  If  they  fall  short  of  this,  he  cannot  do  so. 
Fry  v.  Bennett,  above  cited ;  Schwab  v.  Fumiss,  4  Sandf.  704,  1 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.        535 

C.  K.  (N.  S.)  342.  See  likewise  The  People  v.  Clarke,  10  Barb. 
120,  affirmed  by  Court  of  Appeals,  31st  Dec.,'  1853  ;  /Stoddard 
v.  Onondaga  Annual  Conference,  12  Barb.  573  ;  Noxon  v.  Bentley, 
7  How.  316;  The  People  v.  Banker,  8  How.  258.  It  was  held, 
however,  in  the  last  case,  that,  under  these  circumstances,  the 
defendant  must  be  held  to  have  waived  all  objections  to  the 
complaint,  except  those  for  want  of  jurisdiction,  or  insufficiency, 
as  provided  in  sec.  148. 

After  the  allowance  of  a  demurrer  to  an  answer,  the  defend- 
ant has  a  right  to  amend,  as  of  course,  except  only  when  such 
amendment  is  made  for  delay,  in  which  case,  the  court  will 
strike  it  out,  or  impose  terms.    Cooper  v.  Jones,  4  Sandf.  699. 


§  168.    Reply. 

In  relation  to  the  subject  of  reply,  it  must  be  borne  in  mind 
that,  under  the  Codes,  whether  original  or  amended,  this  plead- 
ing has  never  been  necessary,  where  the  answer  did  not  con- 
tain allegations  of  new  matter.  If  such  answer  amount  to 
nothing  more  than  a  mere  denial  or  traverse  of  the  plaintiff's 
case",  a  sufficient  issue  is  joined  on  the  pleadings  as  they  stand. 
See  observations  at  the  commencement  of  the  chapter,  on  the 
effect  of  the  recent  amendment,  extending  this  same  principle, 
to  all  defensive  allegations  whatsoever,  where  no  counter-claim 
is  set  up,  and  numerous  cases  there  cited. 

The  following  decisions  are,  for  the  most  part,  more  peculiarly 
referable  to  the  law  on  this  subject,  as  it  stood  before  the 
amendment  in  question.  The  main  principles  laid  down  in 
them,  are,  however,  usually  of  general  application;  embracing 
the  mode  of  pleading  under  the  present,  as  well  as  under  the 
recently  repealed  system. 

In  Isham  v.  Williamson,  7  L.  0.  340,  after  deciding  that  the 
plaintiff's  right  to  take  objections  to  irrelevant  matter  in  the 
answer  was  gone  by  delay,  the  learned  judge  proceeded  as  fo1- 
lows:  "The  plaintiff,  however,  need  not  be  embarrassed  in  his 
reply,  by  reason  of  any  irrelevant  matter  in  the  answer.  State- 
ments which  have  nothing  to  do  with  the  case,  and  are,  there- 
fore, immaterial,  expressions  of  opinion  merely,  and  insinuations 
tending  to  throw  discredit  on  the  motives  of  the  plaintiff,  if 
found  in  the  answer,  need  not  be  replied  to."     "It  is  only  a 


536  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

material  allegation,  which,  if  not  controverted  by  the  answer 
or  reply,  is  to  be  taken  as  true."  Sec.  168.  See,  also,  Barton 
v.  Sackett,  3  How.  358,  1  C.  E.  96,  below  cited.  It  is  obvious 
that  the  proper  course  would,  in  the  cases  last  cited,  have  been 
to  move  under  sec.  160.  See,  likewise,  this  subject  considered, 
and  other  cases  cited  heretofore,  in  relation  to  demurrer.  Nor, 
if  the  defendant  himself  present  immaterial  matter  in  his  an- 
swer, can  he  object  to  the  plaintiff's  reply  thereto  as  immaterial, 
though  it  may  be  unnecessary.  King  v.  Utica  Insurance  Com- 
pany, 6  How.  485. 

In  Van  Gieson  v.  Van  Gieson,  12  Barb.  520,  1  C.  E.  (N.  S.) 
414,  it  was  held  that  where,  in  an  action  on  a  promissory  note, 
payment  was  alleged  by  the  answer,  the  latter  allegation  was 
not  one  of  new  matter,  requiring  a  reply,  to  prevent  its  truth 
from  being  considered  as  admitted. 

It  has  also  been  held  that  an  answer,  merely  denying  the 
plaintiff's  case,  and  containing  no  new  matter,  need  not  be  re- 
plied to.  The  defendant,  in  this  case,  cannot  move  for  judg- 
ment under  sec.  154 ;  his  remedy  is  to  notice  the  cause  for  trial. 
Brown  v.  Spear,  5  How.  146,  3  C.  E.  192,  9  L.  O.  97. 

Where  the  defendant  served  an  answer,  and  a  demurrer 
annexed  to  it,  and  subsequently,  after  reply,  served  what  was 
called  an  amended  answer,  but  which  was  in  fact  another  copy 
of  the  former  answer,  without  the  demurrer,  it  was  held  that 
the  plaintiff  was  not  bound  to  serve  a  second  reply,  and  the  de- 
fendant's motion  for  judgment  was  denfed  with  costs.  Howard 
v.  The  Michigan  Southern  Railroad  Company,  5  How.  206,  3  C. 
R.  213. 

The  plaintiff,  as  respects  reply,  has  the  same  power  to  tra- 
verse new  matter,  by  denial  of  knowledge,  &c,  sufficient  to  form 
a  belief,  as  the  defendant  has  with  regard  to  answer.  Such  a 
reply  controverts  specifically,  and  is  sufficient  to  raise  an  issue. 
Doremns  v.  Lewis,  8  Barb.  124;  Gilchrist  v.  Stevenson,  9  Barb.  9. 

In  BeaU  v.  Cameron,  3  How.  414,  where  the  defendant  plead- 
ed that  another  suit  was  pending  for  the  same  cause  of  action, 
and  tlic  plaintiff  replied  that  that  suit  was  discontinued,  such 
reply  was  held  to  be  good,  it  being  true  at  the  time  when  it  was 
put  in.  In  order,  however,  to  such  diseontinuance  being 
effectual,  an  order  must  be  duly  entered,  and  notice  served 
upon  the  defendant.  A  reply  merely  alleging  that  the  suit  was 
discontinued  by  notice  to  that  effect,  will  be  insufficient.  Averill 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.  537 

v.  Patterson,  Court  of  Appeals,  7th  Oct.,  1853.  Nor,  if  omitted 
at  the  time,  can  the  order  for  that  purpose  be  properly  entered 
"  nunc  pro  tunc'1  after  the  trial,  so  as  in  effect  to  overrule  the 
defence  of  the  pendency  of  another  suit,  and  which,  by  reason 
of  such  omission,  was  then  valid.  Bedell  v.  Powell,  13  Barb. 
183. 

The  questions  which  have  arisen  as  to  real  estate  cases  re- 
moved from  a  justices'  court,  have  been  already  noticed,  and 
the  conflicting  cases  on  the  subject  cited,  under  the  heads  of 
Answer,  and  of  the  jurisdiction  of  those  tribunals.  It  is  now 
settled,  that  the  pleadings  in  these  cases  must  follow  the  ordi- 
nary form,  and  that  a  reply,  where  requisite,  is  admissible,  which 
at  first  was  doubted. 

An  answer,  merely  denying  joint  ownership  on  the  part  of 
plaintiffs  who  sued  as  partners,  was  held  in  Walrod  v.  Bennett, 
6  Barb.  144,  to  be  material,  and  necessary  to  be  replied  to. 
Under  the  recent  amendment,  no  reply  would  be  necessary,  a 
sufficient  issue  being  already  raised. 

Where  a  lien  claimed  by  the  defendants,  was  denied  by  the 
reply,  such  denial  was  held  to  be  sufficient  to  warrant  the  in- 
troduction of  evidence  of  fraud  in  relation  to  such  lien,  though 
none  was  specifically  alleged.    Wager  v.  Ide,  14  Barb.  468. 

Allegations  in  reply,  setting  up  the  incorporation  of  the  de- 
fendants, in  order  to  controvert  a  denial  of  that  incorporation 
in  the  answer,  need  not  be  more  specific  than  those  in  a  com- 
plaint, in  a  suit  brought  by  such  corporation.  They  need  not 
show  any  thing  beyond  the  general  fact  of  incorporation,  every 
thing  beyond  being  mere  matter  of  evidence,  and  the  subject 
of  proof,  and  not  of  pleading.  Stoddard  v.  Onondaga  Annual 
Conference,  12  Barb.  573. 

In  Barton  v.  Sachett,  3  How.  358,  1  C.  B.  96,  it  was,  under 
the  original  Code,  held  unnecessary  to  reply  to  allegations  as  to 
the  legal  construction  and  effect  of  written  instruments,  or  as 
to  the  intent  and  meaning  of  parties  in  executing  a  written  con- 
tract. The  adverse  party's  right  to  treat  uncontradicted  aver- 
ments as  admitted,  was  there  held  to  be  confined  to  averments 
of  fact,  and  not  to  extend  to  allegations  of  the  nature  above 
referred  to,  though,  of  course,  an  averment  of  mistake  or  sur- 
prise in  executing  such  agreement,  would  have  been  different. 

The  cause  of  action  stated  in  the  complaint  cannot  be  altered  by 
the  reply,  nor  will  the  objection  be  waived,  by  the  party's  pro- 


538  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

ceeding  to  trial  without  demurring.  Brown  v.  McCune,  5  Sand- 
ford,  224:. 

In  Merritt  v.  Slocurn,  1  0.  E.  68,  3  How.  309,  the  plaintiff 
was  allowed  to  reply  upon  terms,  after  the  cause  had  been  actu- 
ally heard  before  a  referee,  on  an  allegation  that  his  attorney 
had  omitted  to  do  so  through  mistake. 

If  the  plaintiff  omit  to  reply  to  a  set-off  claimed  by  the  de- 
fendant, he  cannot  take  an  inquest  for  the  whole  of  his  claim, 
without  deducting  the  amount  of  that  set-off.  Potter  v.  Smith, 
9  How.  262. 

No  particular  form  is  necessary  with  respect  to  the  reply  to 
be  put  in.  The  allegations  in  it,  as  directed  to  the  new  matter 
necessary  to  be  traversed  or  met  by  counter  allegations,  are, 
"mutatis  mutandis"  precisely  similar  to  those  in  answer,  and 
are  subject  to  all  the  same  incidents,  as  to  form  of  averment  or 
otherwise.  Of  course,  the  utmost  attention  will  be  paid  to  leave 
no  material  averment  in  relation  to  a  counter-claim  uncontra- 
dicted, especially  as  it  seems  very  doubtful  whether  a  reply  can 
be  amended  at  all,  without  special  leave  of  the  court.  The  pro- 
visions in  sec.  172,  do  not  seem  to  reach  the  case,  inasmuch  as, 
no  answer  being  required  or  admissible,  there  can  be  no  "  pe- 
riod for  answering,"  within  which,  as  there  prescribed,  an 
amendment  may  be  made  as  of  course. 

Eule  87,  inserted  on  the  recent  revision,  which  provides  that, 
in  all  cases  of  more  than  one  distinct  cause  of  reply,  the  same 
shall  not  only  be  separately  stated,  but  plainly  numbered,  must 
be  carefully  observed  for  the  future. 

It  would  seem  that,  in  certain  cases,  a  reply  may  be  unad- 
visable,  without  previous  proceedings,  in  the  nature  of  a  refer- 
ence, or  otherwise.  See  Groshons  v.  Lyons,  1  C.  R.  (N.  S.)  348. 
If  such  a  case  should  occur  in  practice,  of  course  an  order, 
extending  the  time  to  reply  until  after  the  result  of  the  proceed- 
ing, should  be  applied  for;  a  notice  to  the  adverse  party  may 
probably  !><•,  necessary. 


§  1G9.    Defendant's  Course  on  Service  of  Reply. 

Motion  to  :  irikc  out,  &c.  Demurrer  in  /ieply.'] — On  service  of 
the  reply,  the  defendant  has  two  courses  open  to  him  for  test- 
ing the  sufficiency  of  that  pleading. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.    .    539 

The  first  of  these  courses,  is  the  power  to  move  to  strike  out 
irrelevant  or  redundant  matter,  which  has  been  before  treated 
of,  and  the  cases  cited,  in  the  introductory  chapter,  and  in  those 
as  to  complaint  and  answer. 

The  second  of  these  courses,  is  a  demurrer  to  such  reply  as 
insufficient,  as  especially  provided  for  by  sec.  155.  It  will  be 
seen,  that  this  power  is  precisely  analogous  to  the  plaintiff's 
right  to  demur  to  the  answer,  as  commented  upon  in  the  earlier 
portion  of  this  chapter,  and  that  the  observations  there  made, 
or  referred  to,  are  equally  applicable. 

The  following  cases  have  especial  reference  to  the  subject  of 
demurrer,  as  above : 

A  reply,  not  involving  a  traversable  fact,  but  merely  stating 
a  conclusion  of  law,  will  be  held  bad  upon  demurrer.  Beniley 
v.  Jones,  4  How.  202 ;  in  which  case  the  plaintiff  merely  denied 
"that  the  defendant  had  any  interest  in  the  premises,"  without 
showing  how  he  became  divested  of  an  interest,  alleged  by  his 
answer  to  be  vested  in  him. 

In  Iiae  v.  The  Washington  Mutual  Insurance  Company,  6  How. 
21,  1  C.  E.  (N.  S.)  185,  a  demurrer  to  reply  for  insufficiency, 
stating  various  grounds  of  objection,  and  pleading  that  the 
reply  was  insufficient  on  the  ground  of  those  defects,  was  re- 
fused to  be  stricken  out  as  frivolous,  though  no  opinion  was 
given  as  to  the  ultimate  result  of  such  demurrer. 

The  motion  there  made,  i.  e.,  that  the  demurrer  should  be 
stricken  out,  was  held  not  to  be  for  judgment  on  the  demurrer, 
under  sec.  247,  and  that,  therefore,  such  motion  could  not  be 
granted  under  that  section,  or  on  the  short  notice  of  five  days 
thereby  prescribed.  See  Darroio  v.  Miller,  5  How.  247,  3  C.  E. 
241,  before  cited. 

In  Shewn  v.  Hooker,  12  Barb.  563  ;  6  How.  167 ;  10  L.  0.  49, 
an  action  brought  against  two  adult  joint  contractors,  and  de- 
fended on  the  ground  of  a  third  not  having  been  joined,  a  reply 
that  such  third  joint  contractor  was  an  infant,  was  held  to  be 
good,  and  that  the  action  was  well  brought ;  and,  the  defend- 
ant having  demurred,  judgment  was  given  for  the  plaintiff  upon 
the  demurrer.  This  judgment  was,  however,  subsequently 
reversed,  and  the  reply  held  to  be  bad,  in  Slocum  v.  Hooker,  13 
Barb.  536. 

It  might  possibly  be  held  that  it  is  also  competent  for  the 
defendant  to  move,  under  sec.  152,  to  strike  out  an  objectionable 


540  REPLY,  AND  CONSEQUEOT  PROCEEDINGS. 

reply,  as  a  "  sham  or  irrelevant  defence."  See  Rae  v.  Washing- 
ton Mutual  Insurance  Company,  above  cited  ;  though  it  may  per- 
haps admit  of  a  doubt,  whether  that  section  can  be  legitimately 
extended,  so  as  to  include  other  defences  than  those  made  by 
answer. 

Another  proceeding  open  to  the  defendant,  if  the  circum- 
stances admit,  is  to  move  for  judgment  on  the  reply  as  frivo- 
lous, under  section  247.  See  previous  observations  as  to  this 
remedy,  both  generally,  and  in  reference  to  a  frivolous  demur- 
rer or  answer. 

Motion  for  Judgment  on  Failure  to  Reply .] — An  important  re- 
medy is  also  given  to  the  defendant  by  sec.  154,  which  runs  as 
follows : 

§  154.  If  the  answer  contain  a  statement  of  new  matter  constituting 
a  defence,  and  the  plaintiff  fail  to  reply  or  demur  thereto  within  the 
time  prescribed  by  law,  the  defendant  may  move,  on  a  notice  of  not 
less  than  ten  days,  for  such  judgment  as  he  is  entitled  to  upon  such 
statement,  and,  if  the  case  require  it,  a  writ  of  inquiry  of  damages  may 
be  issued. 

Though,  in  terms,  somewhat  inconsistent  with  section  153,  as 
it  now  stands  amended,  no  doubt  this  section  will  be  held  to 
be  controlled  by  that  amendment,  and  that,  where  new  matter 
in  the  answer  goes  to  defence  only,  and  does  not  constitute  a 
counter-claim,  a  motion  of  this  description  will  be  inadmissible. 
See  Williams  v.  Upton,  8  How.  205  ;  Quin  v.  Chambers,  1  Duer, 
673  ;  11  L.  0.  155,  before  cited.  See,  however,  per  contra, 
Wisner  v.  Teed,  9  How.  143,  also  above  noticed,  but  apparently 
overruled. 

In  Brown  v.  Spear,  5  How.  146,  3  C.  R  192,  9  L.  0.  97,  it 
was  held,  that  the  above  section  clearly  relates  only  to  an  an- 
swer which  relies  on  new  matter  constituting  a  defence,  and  not 
to  an  answer  by  which  the  plaintiff's  case  was  merely  tra- 
versed, qo  material  additional  matter  being  stated.  It  was  held 
that  all  the  papers  needed  on  such  a  motion  are  the  summons, 
complaint,  answer,  and  notice  of  motion.  Where,  however, 
the  plaintiff  is  not  likely  to  appear,  it  would  be  advisable  to  be 
prepared  with  formal  proof  of  the  service  of  the  pleadings,  on 
which  to  ground  the  order  bv  default.  See  Darrow  v.  Milleri 
6  How.  217  ;  8  ( '.  Ii'.  241.  For  form  of  notice  of  motion,  see 
Appendix. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.  54I 

It  seems  clear  that,  if  any  allegation  in  the  answer  constitute, 
if  admitted,  a  complete  defence,  the  defendant,  on  the  plaintiff's 
failure  to  plead  thereto,  may  proceed  under  the  above  section. 

The  test  as  to  the  admissibility  of  a  motion  of  this  descrip- 
tion would  seem  to  be,  whether  the  defence  set  up  in  the  an- 
swer is,  in  its  nature,  integral  or  collateral.  In  Corn-stock  v.  Hal- 
lock,  1  C.  K.  (N.  S.)  200,  it  was  held  that  "  when  an  answer  sets 
up  as  a  distinct  and  substantive  defence,  a  denial  of  the  cause  of 
action ;  and  also,  as  may  be  done,  sets  up  new  matter  in  avoid- 
ance or  bar,  it  will  not  be  proper  to  give  judgment  for  the  de- 
fendant on  motion,  because  of  the  want  of  a  reply  to  such  new 
matter,  for  the  reason  that  there  still  remains  an  issue  of  fact, 
which  is  still  to  be  disposed  of,  and  which  may  yet  terminate 
the  suit  in  favor  of  the  plaintiff.  But,  when  the  distinct  cause 
of  defence  is  substantially  new  matter,  and,  in  pleading  it,  it 
becomes  necessary  to  deny  some  of  the  allegations  in  the  com- 
plaint, and  there  is  no  other  denial  in  the  pleading  than  such 
denial,  forming,  as  it  does,  part  of  the  defence  of  new  matter ; 
if  the  plaintiff  omits  all  reply,  the  case  comes  within  the  154th 
section  of  the  Code,  and  judgment  may  be  given  for  want  of  a 
reply."  A  motion  for  that  purpose  was  accordingly  granted  in 
that  case,  the  facts  bringing  it  within  the  principle  above  laid 
down. 

The  observations  above  made  have  reference  to  the  Code  of 
1851,  and  the  previous  measures.  Under  the  recent  amend- 
ments, a  motion  of  this  description  would  seem  to  be  impracti- 
cable, except  in  the  case  of  a  counter-claim,  exceeding  the 
plaintiff's  demand,  and  omitted  to  be  replied  to. 

If  the  plaintiff  omit  to  reply  to  a  counter-claim  in  part,  he 
cannot  take  an  inquest  for  the  whole  of  his  claim,  without 
allowing  that  counter-claim.     Potter  v.  Smith,  9  How.  262. 

A  motion  of  the  above  description  cannot  be  made  at  cham- 
bers. A  judge  has  no  power,  out  of  court,  to  render  a  judgment 
on  this  ground.    Aymar  v.  Chase,  12  Barb.  801,  1  C.  R.  (N.  S.)  330. 

An  omission,  at  the  time,  to  make  a  motion  of  this  description, 
does  not  preclude  the  defendant  from  demanding  such  a  judg- 
ment, on  the  actual  trial  of  the  cause.  Bridge  v.  Payson,  5  Sand- 
ford,  210. 

Amendment  of  Answer, .] — If  none  of  the  above  courses  be 
taken  by  the  defendant,  and  the  reply  disclose  new  facts,  neces- 


542  REPLY,  AND  CONSEQUENT  PROCEEDINGS. 

sary  to  be  met  by  counter-allegations  on  his  part,  before  issue 
can  be  properly  joined  on  the  pleadings  as  they  stand,  it  is  com- 
petent for  him  to  amend  his  answer  as  of  course,  within  the 
usual  period  after  service  of  the  reply.  Cusson  v.  Whalon,  5 
How.  302,  1  C.  R.  (N.  S.)  27 ;  Seneca  County  Bank  v.  Garling- 
house,  4  How.  174,  and  other  cases  before  cited,  under  the  head 
of  Correction  of  Pleadings.  Of  course,  if  he  take  that  step,  he 
does  so,  subject  to  the  contingency  of  the  plaintiff's  amending 
his  complaint  in  consequence,  and  of  the  whole  circle. of  plead- 
ing having  to  be  gone  through  a  second  time. 

From  the  time  of  the  service  of  the  reply,  issue  is  to  be  con- 
sidered as  finally  joined,  subject,  during  the  period  allowed  him 
for  that  purpose,  to  the  defendant's  right  to  amend.  Notwith- 
standing the  temporary  existence  of  that  right,  the  plaintiff  is, 
nevertheless,  at  liberty  to  proceed  with  the  cause,  by  serving 
notices  of  trial,  &c,  &c,  immediately  after  the  reply  is  served, 
and  is  bound  to  do  so  at  once,  if  the  defendant  waives  his  right 
to  amend,  either  by  express  notice,  or  by  noticing  the  cause 
himself.  Cusson  v.  Whalon,  5  How.  302,  1  C.  R.  (N.  S.)  27, 
above  cited.  If,  however,  he  take  judgment  within  such  period, 
and  without  such  waiver  on  the  part  of  the  defendant  as  above, 
he  does  so  at  his  peril,  and  under  the  risk  of  having  such  judg- 
ment set  aside,  if  the  defendant  serve  an  amended  pleading  in 
time.  Washburn  v.  Herrick,  4  How.  15,  2  C.  R.  2 ;  Dickerson 
v.  Beardsley,  1  C.  R.  37,  6  L.  0.  389. 

§   170.     Final  Joinder  of  Issue.    Effect  of  on  Pleadings. 
Admission  of  Facts  not  controverted. 

The  above  proceedings  being  exhausted,  issue  is  now  joined, 
and  the  effect  of  the  completion  of  the  pleadings,  as  regards  spe- 
cific allegations  <>f  fact,  is  laid  down  by  section  168,  as  follows  : 

§108  Every  materia]  allegation  of  the  complaint,  not  controverted 
by  the  answer,  as  prescribed  in  section  one  hundred  and  forty-nine; 
and  every  material  allegation  of  new  matter  in  the  answer,  constituting 
a  counter-claim,  nut  controverted  by  (lie  reply,  as  prescribed  in  section 
one  hundred  and  fifty-three,  shall,  for  tli<-  purposes  of  the  action,  be 
taken  as  true.  Hat,  the  allegation  of  new  matter  in  the  answer,  not 
relating  to  a  counter  claim,  or  of  new  matter  in  a  reply,  is  to  be  deemed 
controverted  by  the  adverse  party* aa  upon  a  direct  denial  or  avoidance, 
as  the  ca-e  may  leijuire. 


REPLY,  AND  CONSEQUENT  PROCEEDINGS.        543 

The  effect  of  the  recent  amendments  in  this  section,  in  rela- 
tion to  averments  in  answer,  assimilating  the  practice  to  that 
already  existent  as  regards  reply,  in  cases  where  no  counter- 
claim is  set  up,  has  been  already  noticed. 

It  will  be  seen  that,  by  this  section,  and  also  by  the  corre- 
sponding provisions  in  the  previous  measures,  any  new  matter 
alleged  in  the  reply,  need  not  be  specifically  traversed  by  any 
subsequent  pleading,  and  does  not  conclude  the  defendant  in 
any  manner.  Unless,  therefore,  such  new  matter  constitute  a 
feature  in  the  case,  which  necessitates  an  attempt  to  join  issue 
in  some  other  form  than  that  presented  by  the  existent  plead- 
ings, it  will  be  scarcely  worth  while  for  the  defendant  to 
amend  his  answer  as  above,  inasmuch  as  his  power  of  bringing 
in  any -description  of  evidence,  not  entirely  impertinent  to  the 
issue,  as  joined  by  the  pleadings  as  they  stand,  is  thus  specially 
saved,  without  the  necessity  of  any  further  measures  on  his 
part. 

An  omission  to  reply  to  a  complete  defence  will  be  a  fatal 
objection,  and  one  that  may  be  taken  on  the  trial,  notwithstand- 
ing the  party  may  have  neglected  to  make  a  previous  motion 
on  the  subject,  as  allowed  by  s.  154.  Bridge  v.  Pay  son,  5 
Sandf.  210. 

Such  an  omission,  and  the  consequent  admission  of  the  fact 
not  controverted,  is  conclusive,  in  every  stage  of  the  suit,  and 
is  sufficient  ground  for  the  court  to  disregard  either  the  report 
of  a  referee,  or  the  verdict  of  a  jury  to  the  contrary.  A 
reply  or  answer  may,  however,  be  allowed,  nunc  pro  tunc,  if 
otherwise  proper.  Willis  v.  Underhill,  6  How.  396.  If  the 
plaintiff  omit  to  reply  to  a  partial  counter-claim,  he  cannot 
take  an  inquest  for  his  whole  claim,  without  allowing  that 
amount.     Potter  v.  Smith,  9  How.  262. 

Nothing,  however,  will  be  held  to  be  admitted  by  an  omission 
to  controvert  it,  except  what  is  well  pleaded.  See  Harlow  v. 
Hamilton,  6  How.  475 ;  Stoddard  v.  Onondaga  Annual  Confer- 
ence, 12  Barb.  573;  Fry  v.  Bennett;  Isham  v.  Williamson,  and 
numerous  other  cases,  heretofore  cited,  in  this  and  the  preceding 
chapters. 

Of  course,  co-defendants,  possessing  several  interests,  are  not 
bound  by  each  other's  answers,  or  by  any  admissions  contained 
therein.  Still  less  is  a  defendant,  who  has  not  answered  at  all, 
bound  by  the  ■  pleading  of  one  who  has.  See  Woodworth  v. 
Bellows,  4  How.  24,  1  C.  R.  129. 


544  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 


CHAPTER    VII. 

REVIVOR  AND  SUPPLEMENTAL  PLEADING. 


Before  passing  on  to  the  ulterior  proceedings  consequent 
on  the  joinder  of  issue,  the  subjects  treated  of  in  this  chapter 
require  notice,  because,  where  admissible,  the  steps  in  question 
involve  in  all  cases  a  formal,  and  in  some,  a  material  change  of 
the  issue  to  be  tried,  as  joined  by  the  original  pleadings. 

The  subjects  so  requiring  to  be  treated  at  this  juncture  are 
twofold,  viz: 

1.  Revivor;  and,  2.  Supplemental  Pleading. 


§  171.   Revivor,  <$fc. 

The  provision  of  the  Code  on  this  subject  is  contained  in  sec. 
121,  and  runs  as  follows: 

§  121.  No  action  shall  abate  by  the  death,  marriage,  or  other  disa- 
bility of  a  party,  or  by  the  transfer  of  any  interest  therein,  if  the  cause 
of  action  survive  or  continue.  In  case  of  death,  marriage,  or  other 
disability  of  a  party,  the  court,  on  motion,  at  any  lime  within  one  year 
thereafter,  or  afterwards,  on  a  supplemental  complaint,  may  allow  the 
action  to  be  continued,  by  or  against  his  representative  or  successor  in 
interest.  In  case  of  any  other  transfer  of  interest,  the  action  shall  be 
continued  in  the  name  of  the  original  party ;  or  the  court  may  allow 
the  person  to  whom  the  transfer  is  made,  to  be  substituted  in  the 
action. 

It  will  <>('  course  be  observed,  that  a  premium  is  here  given 
to  diligence,  and  that,  if  the  plaintiff  move  at  once  in  the  mat- 
ter, his  course  i  easier  and  simpler  than  that  which  he  will  be 
obliged  to  pursue,  in  case  he  delay  his  application  fur  more  than 
one  year  after  the  Buil  has  abated.  In  the  latter  case,  a  supple- 
mental complaint  must  be  filed,  and  the  whole  course  of  pro- 
Qeeding  will  be  precisely  analogous  to  that  on  a  bill  of  revivor 


REVIVOR,  AND  SUPPLEMENTAL  PLEADING.  545 

and  supplement  under  the  old  chancery  practice.  The  works 
on  that  subject  may  therefore  be  referred  to,  and  the  directions 
there  given  followed,  both  as  to  the  form  and  mode  of  proceed- 
ing; and  likewise  as  to  obtaining  the  leave  of  the  court  in  the 
first  instance.  See  Greene  v.  Bates,  7  How.  296,  confirming  the 
view  here  taken. 

Of  course,  the  filing  of  a  bill  of  revivor  and  supplement,  in- 
volves, as  of  necessity,  the  service  of  fresh  process,  and  implies 
a  power  to  the  defendant  to  put  the  fresh  matter  in  issue,  in  the 
usual  form. 

It  will  be  remarked  that  the  provision,  that  actions  shall  not 
abate  by  death,  marriage,  disability,  or  transfer  of  interest,  is 
only  applicable  to  those  cases  where  the  cause  of  action  survives 
or  continues.  The  rule  of  "  actio  personalis  moritur  cum  per- 
sona,11 still  holds  good  as  to  all  others  not  falling  under  this  de- 
scription: such  as  actions  for  personal  torts,  and  others  of  a  like 
nature.  It  will  be  seen  also,  that  transfer  of  interest  does  not, 
per  se,  create  an  abatement,  but  that  the  action  may  still  be 
continued  in  the  name  of  the  original  party,  if  thought  expe- 
dient, notwithstanding  such  transfer.  See  Sheldon  v.  Havens,  7 
How.  268.  The  contrary  course  was,  however,  pursued,  and 
sustained  by  the  Court  of  Appeals,  in  Hastings  v.  McKinley,  7th 
Oct.,  1853.  The  case  is  otherwise  as  to  death,  marriage,  or  any 
other  disability,  by  the  occurrence  of  which,  the  person  entitled 
to  sue  or  to  be  sued  becomes  either  non-existent,  or  personally 
incapacitated  from  continuing  or  defending  the  action,  as  origi- 
nally brought. 

Of  course,  in  almost  all  cases,  the  parties  entitled  to  revive, 
will  avail  themselves  of  the  short  and  speedy  method  here 
pointed  out,  in  the  event  of  the  application  being  made  within 
one  year  from  abatement.  The  provision  in  question  pre- 
scribes that  the  application  for  this  purpose  shall  be  made  upon 
motion;  but,  for  obvious  reasons,  it  seems  expedient  that  such 
motion  should  be  grounded  upon  a  petition,  duly  verified.  See 
Rules  38  and  39.  The  facts  necessary  to  induce  the  court  to 
grant  an  order  of  this  description  being  substantive  facts, 
going  directly  to  the  right  of  the  substituted  party  to  sue,  it  is- 
most  important  that  the  statement  of  those  facts  should  appear 
fully  and  directly  upon,  and  should,  in  fact,  form  part  of  the 
record.  No  doubt  they  might  be  shown  by  affidavit,  without 
petition ;  and  there  seems  no  positive  obstacle  to  an  order  being 
35 


546  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 

granted  on  an  ordinary  notice  of  motion,  as  was  done  in  Wal- 
dorph  v.  Bortlc,  4  How.  358 ;  but  still,  for  the  reasons  above  cited, 
petition  will  be  the  more  convenient  form.  See,  too,  William- 
son v.  Moore,  5  Sandf.  647,  below  cited,  with  reference  to  peti- 
tion being,  in  some  cases,  the  necessary  form  of  application. 

When  the  application  is  made  by  the  representatives  of  a 
deceased  plaintiff  alone,  they  are  the  proper  petitioners ;  but,  if 
there  be  other  co-plaintiffs,  those  co-plaintiffs  should  be  joined. 
This  appears  clearly  necessary,  though  no  provision  is  made 
upon  the  subject;  and,  inasmuch  as  all  the  plaintiffs  to  an  action 
must,  of  necessity,  act  in  concert,  and  be  represented  by  the 
same  party,  it  can,  for  the  most  part,  involve  no  practical  incon- 
venience. Where  the  suit  has  abated  by  the  death  of  a  defend- 
ant, the  former  plaintiffs  should  be  the  petitioners.  Where  the 
application  is  by  the  transferee  of  an  interest,  he  is  of  course 
the  proper  applicant.  A  clear  prima  facie  right  to  continue 
must  be  shown,  or  the  order  cannot  be  granted.  See  St.  John 
v.  West,  below  cited. 

The  Code  being  entirely  silent  as  to  the  course  of  proceeding 
in  relation  to  an  order  of  this  description,  the  practice  upon  the 
subject  can  only  be  gathered  by  induction,  or  by  analogy  with 
the  course  pursued  on  a  bill  of  revivor  and  supplement,  under 
the  old  practice. 

Where  an  order  of  this  description  is  made  for  the  mere  con- 
tinuation of  the  suit  by  a  new  plaintiff,  the  order  is  almost  as 
of  course,  on  a  proper  prima  facie  case  being  shown,  but  not, 
where  the  right  to  revive  is  in  any  manner  doubtful.  It  would 
seem  that,  in  clear  cases,  this  application  may  be  made  ex  parte, 
especially  where  the  defendant  has  not  appeared.  See  Thayer 
v.  Mead)  below  cited.  The  better  practice  will,  however,  be  to 
give  notice  to  all  the  defendants,  in  all  except  the  very  simplest 
cases,  either  in  the  ordinary  form,  or  by  means  of  an  order  to 
show  causa  A  copy  of  the  order  for  revivor,  or  continuation, 
when  made,  should  be  served  on  every  defendant,  and,  where 
made  on  affidavit,  copies  of  the  affidavits  should  be  served  also. 
Witli  this  service  the  proceeding  would  seem  to  be  complete. 
An  issue  us  to  the  right  of  the  substituted  party  to  sue,  being 
tendered  by  the  order  itself,  and  the  proceedings  on  which  it  is 
ground'1!,  no  amendment  of  the  complaint  seems  to  be  required. 
The  substantive  allegations  of  that  pleading,  and  the  relief  de- 
manded by  it,  remain   as  before,  and   the  mere  substitution  of 


REVIVOR,  AND  SUPPLEMENTAL  PLEADING.  547 

one  name  for  another,  works  no  real  change  in  the  position  of 
the  defendants.  If  it  do  so,  or  if  the  right  of  the  party  to  con- 
tinue be  doubtful,  it  will  then  be  competent  for  the  former, 
either  to  oppose  the  granting  of  the  order  in  the  first  instance 
or  to  move  to  vacate  it  afterwards,  on  affidavit  showing  it  to 
have  been  improvidently  granted.  Where  a  supplemental  com- 
plaint is  necessary,  of  course  a  copy  of  it  must  be  served  in  the 
usual  manner. 

Such  would  seem  to  be  the  proper  course,  where  the  order  is 
to  revive  or  continue,  by  the  substitution  of  a  fresh  plaintiff: 
where  the  application  is  against  the  representatives  or  success- 
ors in  interest  of  a  deceased  defendant,  the  points  to  be  pro- 
vided for  are  more  in  number.  In  this  case,  service  of  notice 
of  the  application,  on  the  parties  proposed  to  be  substituted,  is 
absolutely  necessary,  and,  of  course,  such  service  must  be  per- 
sonal, there  being  no  attorney  in  the  action,  as  regards  those 
parties.  The  better  mode  of  doing  this  would  be  by  servino-  a 
copy  of  the  petition,  with  a  notice  of  motion  subjoined,  or,  if  the 
parties  be.  merely  formal,  and  if  no  substantive  relief  be  de- 
manded against  them,  an  ordinary  notice  might  suffice.  It  may 
be  questionable,  whether  the  remaining  original  defendants  if 
any,  are  not  entitled  to  notice  also ;  and  the  safer  course  will 
be  to  give  it  in  all  cases,  and  likewise  to  serve  a  copy  of  the 
order,  when  made,  upon  the  parties  in  question. 

The  motion  having  been  made  in  due  course,  a  copy  of  the 
order  thereon  should  be  personally  served  upon  each  new 
defendant,  and,  with  it,  should  be  served  a  copy  of  the  original 
summons  and  complaint,  or  a  copy  of  the  summons  and  notice 
of  object  of  suit,  in  cases  where  no  personal  relief  is  demanded. 
Where,  however,  such  party  has  formally  appeared  by  attorney 
on  the  motion,  and  such  attorney  be  willing  to  accept  service 
in  the  usual  manner,  personal  service  may  be  dispensed  with. 
If  such  new  defendant  have  any  personal  interest  in  the  matter, 
it  would  seem  to  be  competent  for  him  to  put  it  in  a  fresh  an- 
swer, if  so  advised.  If  so,  the  cause  will  then  have  to  go  through 
the  ordinary  forms,  from  that  point,  in  relation  to  any  new  issue 
tendered  by  him ;  but  where,  on  the  contrary,  such  defendant 
is  a  mere  representative,  without  any  personal  interest,  and  his 
testator  or  intestate  has  already  answered,  it  will  be  neither  ne- 
cessary nor  advisable  for  him  to  plead  afresh.  Of  course,  where 
any  of  the  new  defendants  are  infants,  the  usual  forms  as  to 


548  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 

the  appointment  of  a  guardian  ad  litem  must  be  complied  with, 
before'the  plaintiff  will  be  in  a  situation  to  proceed  against 
them.     See  Putnam  v.  Van  Buren,  7  How.  31,  below  cited. 

Forms  of  petition  for  the  above  purposes,  and  of  the  order 
thereupon,  will  be  found  in  the  Appendix. 

In  cases  of  disability,  by  marriage,  lunacy,  or  otherwise, 
supervening  after  issue  joined,  an  application,  under  sec.  122, 
for  the  purpose  of  bringing  in  the  additional  parties  rendered 
necessary,  such  as,  for  instance,  the  husband  of  a  marrying 
party,  or  the  committee  of  one  becoming  lunatic,  &c.,  &c,  will 
afford  the  proper  remedy. 

The  following  decisions  have  been  made  under  the  Code,  in 
relation  to  the  above  subject: 

In  O'Brien  v.  Hagan,  1  Duer,  664,  it  was  held  that,  when  the 
plaintiff  or  defendant  in  a  civil  suit  is  sentenced  to  imprison- 
ment in  the  State  Prison,  though  only  for  a  term  of  years,  the 
suit  is  thereby  abated,  and  a  revivor  will  be  necessary. 

The  provisions  of  sec.  121  were  expressly  rendered  retro- 
spective, by  sec.  2  of  the  supplemental  acts  of  1848  and  1849, 
but,  notwithstanding,  the  following  difficulties  have  been  sug- 
gested : 

In  Phillips  v.  Brake,  1  C.  R.  63,  the  court  appears  to  have 
considered,  that  an  order  could  not  be  granted,  to  revive  a  suit 
commenced  before  the  passage  of  the  Code,  unless  the  defend- 
ant consented  to  such  course;  and  that  the  only  proper  remedy, 
in  such  case,  was  a  bill  of  revivor  and  supplement,  under  the 
old  practice.  It  may  probably  be  held,  however,  that  the  sub- 
sequent amendment  in  section  459  has  obviated  this  objection. 
In  Vrooman  v.  Jones,  5  How.  369,  1  C.  R.  (N.  S.)  80,  it  was 
held,  that  the  above  section,  notwithstanding  that  it  is  in  terms 
made  retrospective  by  section  2  of  the  supplemental  act,  cannot 
be  80  considered,  with  reference  to  transfers  of  interest,  which 
took  place,  previous  to  the  passage  of  the  Code.  It  would,  if 
so,  be  unconstitutional,  as  tending  to  lix  upon  the  transferees 
of  such  interei  t,  the  general  costs  of  the  suit,  for  which,  under 
the  old  pra  tice,  they  were  not  liable  This  seems,  on  the  con- 
trary, to  be  a  permanent  objection,  wherever  the  circumstances 
admit  of  it.-  being  taken. 

In  Sheldon  v.  Havens,  7  Sow.  268,  where  one  of  two  plaintiffs 
had  assigned  to  the  other,  and  died  subsequently,  and  an  appli- 
cation was  made,  by  the  administrator  of  the  latter,  that  the 


REVIVOR,  AND  SUPPLEMENTAL  PLEADING.  549 

suit  should  be  continued  in  his  own  sole  name,  the  court  con- 
sidered, that  the  interests  of  the  defendant,  with  a  view  to  .the 
costs  of  the  action,  should  be  taken  into  account;  and  an  order 
was  made,  that  the  original  co-plaintiff  should  be  continued,  the 
administrator  being  also  let  in. 

Where  the  right  to  revive  is,  prima  facie,  of  course,  it  seems 
that  no  counter  allegation  will  avail  to  deprive  the  party  of  it. 
Thus,  in  Wing  v.  Ketcham,  3  How.  385,  2  C.  E.  7,  it  was  held 
that  the  administrator  of  a  deceased  plaintiff  might  continue 
an  action  under  a  money  contract,  notwithstanding  an  affidavit 
by  the  defendant,  that  such  deceased  plaintiff  had  assigned  his 
demand  before  the  commencement  of  the  suit;  the  court  refused 
to  try,  upon  affidavits,  a  point  which  involved  the  merits  of 
the  action.  Leave  was,  however,  given  to  the  defendant,  to 
amend  his  answer  accordingly. 

Although,  where  such  an  application  is  made  by  the  admi- 
nistrator of  a'deceased  plaintiff,  in  ordinary  cases,  it  may  proba- 
bly be  made  ex  parte,  still,  where  there  is  any  thing  unusual 
in  the  application,  notice  ought  to  be  given.  Thus,  in  Thayer 
v.  Mead,  2  C.  E.  18,  it  was  held  that,  where  an  administrator 
had  been  changed,  it  was  irregular  to  revive  the  suit  in  the 
name  of  the  new  administrator,  by  an  ex  parte  application,  the 
defendant  having  appeared;  but  that  such  application  could 
only  be  made  upon  notice.  The  order  removing  the  adminis- 
trator appears,  in  that  case,  to  have  been  under  appeal,  at  the 
time  when  the  ex  parte  application  was  made  by  the  substituted 
party. 

Where  a  non-resident  defendant  dies,  pending  service  by  pub- 
lication, and  before  the  expiration  of  the  period  prescribed  for 
that  service,  no  action  is  pending,  that  can  be  revived  against 
his  representatives.  McEicen's  Executor  v.  Public  Administrator, 
3  C.  E.  139.  In  Moore  v.  Thaye^,  10  Barb.  258,  6  How.  47,  3 
C.  E.  176,  the  doctrine  here  laid  down  was  so  far  confirmed. 
An  attachment  having,  however,  been  granted  in  that  case, 
during  the  lifetime  of  the  deceased,  it  was  held  that  the  suit 
was  thereby  commenced,  notwithstanding  that  the  service  of 
the  summons  remained  incomplete;  and  the  decision  in  Mc- 
Eiverfs  Executor  v.  The  Public  Administrator,  was  reversed  on 
that  ground. 

In  Waldorph  v.  Bortle,  4  How.  358,  it  was  decided,  that  a 
motion,  to  continue  an  action  of  ejectment  against  the  heirs  of 


550  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 

a  deceased  defendant,  was  correct:  the  court  throwing  out  a  dic- 
tum, (though  that  question  was  not  at  issue,)  that,  if  there  were 
a  third  person  in  the  occupation  of  the  premises,  he  ought  also 
to  be  made  a  -defendant. 

In  Putnam  v.  Van  Buren,  7  How.  31,  it  was  considered,  on 
the  contrary,  that  the  heirs  of  a  deceased  defendant  are  not  his 
successors,  or  rather,  as  expressed  in  the  opinion,  his  survivors, 
in  interest ;  and  that  an  order  could  not  be  made  against  infant 
heirs  under  those  circumstances.  This  conclusion  is,  however, 
doubtfully  expressed,  and  seems,  when  examined,  more  than 
doubtful.  The  order  there  made  was,  though,  clearly  sustain- 
able, on  other  grounds.  It  did  not  appear  by  the  petition  in 
that  case,  that  the  heirs  there  in  question  were  in  possession,  or 
that  they  asserted  any  hostile  claims;  nor  had  the  petition  been 
duly  served  on  the  proper  parties,  but  only  on  the  attorney  for 
the  ancestor,  who  had  no  authority  to  appear.  It  was,  there- 
fore, held,  and,  doubtless,  correctly  held,  that  the  plaintiff  should 
have  shown,  affirmatively,  that  he  could  not  obtain  possession 
without  making  the  heirs  parties,  and  that  the  latter  should 
have  had  an  opportunity  to  elect,  whether  they  would  continue 
or  abandon  the  action.  A  guardian  should  have  been  first 
appointed,  and  then  the  papers  for  the  motion  should  have  been 
served  on  him. 

On  the  death  of  one  of  several  plaintiffs  in  ejectment,  leaving 
a  will,  under  which  three  points  were  doubtful, 

1.  Whether  the  trustee  under  that  will  would  take  the  title 
to  the  lands,  or  only  a  power  in  trust; 

2.  Whether  the  devisee  could  or  could  not  be  regarded  as  a 
citizen  capable  of  inheriting  real  estate ;  and, 

3.  Whether,  under  these  circumstances,  the  title  had  not 
passed  to  the  State  by  escheat; 

A  motion  to  add  the  names  of  the  trustee,  the  devisee,  and 
the  people,  as  plaintiffs  in  the  place  of  the  testator,  was  denied, 
and  that  denial  sustained  upon  appeal.  It  was  held,  that  the 
party  applying  to  continue  a  suit,  must  make  out  a  clear  prima 
fade  ease,  showing  bimself  to  have  succeeded  to  the  title  with- 
out question;  and  /ioi/nton  v.  //"///,  1  Dcnio,  53,  was  cited  to 
that  effect.  It  was  further  held  that,  if  a  mere  case  of  doubt 
were  made  OUt,  the  right  secured  by  the  statute  did  not  attach, 
and  that  that  statute  g;ive  no  right  of  experimenting  as  to  the 
proper  party.     It  was,  however,  conceded,  in  the  course  of  the 


REVIVOR,  AND  SUPPLEMENTAL  PLEADING.  551 

opinion,  that,  if  tlie  application  had  been  for  the  court  to  deter- 
mine, upon  the  facts  presented,  which  of  the  three  parties  had 
succeeded,  and  to  substitute  such  party,  it  might  probably  have 
been  entertained.  A  doubt  was  also  thrown  out  as  to  whether 
the  people,  claiming  under  escheat,  could  continue  an  action  at 
all,  as  "successors"  to  a  deceased  party;  and  it  was  held,  on  the 
contrary,  that  theirs  is  a  prior  right,  become  paramount  by  the 
extinction  of  that  upon  which  the  action  is  founded,  and  there- 
fore not  coming  within  the  terms  of  the  statute.  St.  JoJui  v. 
-West,  4  How.  329,  3  C.  E.  85. 

In  Hatfield  v.  Bloodgood,  1  C.  E.  (N.  S.)  212,  it  was  held  that 
the  provision  of  the  Code,  authorizing  a  suit  to  be  revived 
against  the  executor  of  a  deceased  party,  applies  as  well  to  the 
defendant  in  a  cross  bill,  as  to  the  original  suit. 

In  AveH.il  v.  Patterson,  Court  of  Appeals,  7th  Oct.,  1853,  it 
was  considered,  with  reference  to  the  necessity  of  a  formal 
order  of  discontinuance,  that  a  suit  may  be  revived  after  any 
lapse  of  time,  there  being  no  Statute  of  Limitations  upon  the 
subject. 

In  Hastings  v.  McKinley,  8  How.  175,  it  was  held,  that  the 
provisions  of  sec.  121  do  not  apply  to  cases  pending  in  the 
Court  of  Appeals,  and  that  the  necessary  relief,  to  enable  the 
representatives  of  a  deceased  party  to  continue  an  appeal,  may 
be  granted  on  motion,  according  to  the  former  practice  of  the 
court,  without  the  necessity  of  any  application  to  the  court  be- . 
low,  or  of  any  supplemental  complaint  being  filed.  The  question 
as  to  what  is  the  effect  of  such  an  order  on  any  ulterior  proceed- 
ings in  the  cause,  in  the  event  of  a  new  trial  being  granted,and 
the  cause  being  remitted  to  the  court  below,  does  not  appear  to 
have  arisen.  It  might  well  be  argued  that,  in  that  state  of  cir- 
cumstances, a  supplemental  complaint  would  become  necessary, 
with  reference  to  the  second  trial ;  and,  in  case  of  such  a  state 
of  circumstances  arising,  an  application  to  obtain  the  further 
relief,  or  settle  the  question,  would  appear  unquestionably  pru- 
dent, if  not  necessary,  though,  of  course,  after  the  decision  in 
the  court  above,  and  not  pending  the  appeal. 

In  Ridgeway  v.  Bulkley,  7  How.  269,  it  was  held  that  the  de- 
fendant, in  case  of  the  decease  of  the  plaintiff,  is  entitled,  as  of 
right,  to  an  order  that  it  be  continued  in  the  name  of  his  repre- 
sentative. 

In  Miller  v.  Gunn,  7  How.  159,  the  representatives  of  a  de- 


552  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 

fendant,  who  died  after  judgment  in  the  plaintiff's  favor,  and 
pending  an  appeal  to  the  general  term,  were  held  entitled  to 
have  the  suit  revived  against  them,  though  the  action  itself  was 
a  personal  action ;  on  the  ground  that,  though  such  revivor 
was  not  essential  for  the  purposes  of  the  then  pending  appeal, 
their  right  to  appeal  farther,  if  advised,  was  necessary  to  be 
secured  to  them. 

The  death  of  a  party,  after  judgment,  and  pending  an  appeal, 
does  not,  however,  create  an  abatement,  or  render  a  revivor  ne- 
cessary, so  far  as  that  specific  appeal  is  concerned.  Same  case. 

Nor  will  the  death  of  the  party,  after  the  hearing  of  a  cause 
by  the  court,  but  before  its  actual  decision,  work  an  abatement. 
An  order  may,  on  the  contrary,  be  obtained  for  the  entry  of  the 
judgment  nunc  pro  tunc,  as  of  the  day  of  the  trial,  and  the  re- 
medy of  the  representative  will  be  by  appeal  from  that  judg- 
ment. It  is  not  analogous  to  the  case  where  the  plaintiff  dies 
after  trial,  and  before  verdict.  Elite  v.  Moyer,  8  How.  244.  See 
likewise,  Diefendorf  v.  Howe,  9  How.  243. 

Where  one  of  several  joint  plaintiffs  dies,  pending  an  action, 
the  cause  of  which,  survives,  the  defendant  cannot  take  judg- 
ment against  the  survivors,  without  an  order  that  the  action 
proceed  in  favor  of  the  surviving  plaintiff.  That  order  is  ob- 
tainable on  the  motion  of  either  party,  and  is  an  absolute  pre- 
requisite. If  omitted,  the  judgment  will  be  irregular,  and  must 
be  set  aside.  Holmes  v.  Honie,  9  How.  383. 

In  Greene  v.  Bates,  7  How.  296,  it  was  held,  in  accordance 
with  the  views  before  laid  down,  that  the  proper  course  to  be 
pursued  by  a  defendant,  in  the  event  of  a  neglect  on  the  part 
of  the  plaintiff's  representative  to  revive,  after  abatement  by 
the  hitter's  decease,  was  to  obtain  an  order,  requiring  the  repre- 
sentative to  file  and  serve  a  supplemental  complaint  of  revivor 
within  thirty  days,  or  that  the  original  complaint  should  be 
dismissed  with  costs. 

In  Williamson  v.  Moore,  5  Sandf.  647,  the  same  course  was 
i  to  be  both  admissible  and  proper,  with  reference  to  the 
representatives  of  deceased  co-plaintiffs,  with  a  view  to  secure, 
either  a  revivor  or  a  dismissal  of  the  complaint,  so  far  as  their 
into ■,  re  conci  mi  d,  the  cause  of  action  in  that  case  being 

one  that  merely  continued,  but  did  not  survive.  It  was  held 
that  Buch  an  order  was  only  obtainable  on  petition,  and  not  on 
motion  in  the  ordinary  form.     Such  an  order  cannot  however 


REVIVOR,  AND  SUITLEMENTAL  PLEADING.  553 

be  obtained,  as  against  the  other  surviving  co-plaintiffs.  They, 
as  such,  had  a  right  to  proceed  with  the  suit,  without  regard  to 
the  collateral  interests.  The  suit,  as  to  them,  might  be  dismissed 
for  want  of  prosecution,  but  not  for  a  neglect  to  revive. 

In  Taylor  v.  Church,  9  How.  190,  12  L.  O.  156,  it  was  held 
that,  where  one  of  several  joint  plaintiffs,  suing  as  partners, 
died,  pending  the  suit,  it  was  not  necessary  to  obtain  an  order 
under  sec.  121,  to  enable  that  suit  to  be  continued  by  the  sur- 
vivors, but  that  the  old  course  of  entering  a  suggestion  on  the 
record,  as  provided  by  the  Revised  Statutes,  was  both  admis- 
sible and  proper  to  be  pursued.  The  proceeding  by  motion,  it 
was  there  held,  was  more  peculiarly  applicable  to  those  cases 
where,  under  the  old  practice,  the  remedy  was  by  scire  facias. 
The  course  of  obtaining  an  order  under  sec.  121,  is,  however, 
clearly  admissible  in  all  cases,  and  seems  that  most  calculated 
to  avoid  ulterior  difficulty. 

§  172.    Supplemental  Pleading. 

The  Code  provides  on  this  subject  as  follows: 

§  177.  The  plaintiff  and  defendant  respectively,  may  be  allowed,  on 
motion,  to  make  a  supplemental  complaint,  answer,  or  reply ;  alleging 
facts  material  to  the  case,  occurring  after  the  former  complaint,  answer, 
or  reply ;  or  of  which  the  party  was  ignorant  when  his  former  pleading 
was  made. 

This  provision  is,  as  will  be  seen,  in  direct  analogy  to  the  plea 
"puis  darrein  continuance,"  under  the  old  practice.  Proceed- 
ings in  the  nature  of  a  bill  of  revivor  under  the  last  section, 
fall  necessarily  under  this  section  also,  when  the  application  is 
made  more  than  one  year  after  abatement. 

A  supplemental  complaint,  is  not  an  addition  to  the  origi- 
nal, but  in  the  nature  of  another  original  complaint,  which,  in 
its  consequences,  may  draw  to  itself  the  advantages  of  the 
former.     Furniss  v.  Brown,  not  reported,  per  Edmonds,  J. 

Where  the  original  assignee  of  trust  property,  made  a  defend- 
ant as  such,  had  died  before  appearance,  and  a  new  trustee  had 
been  appointed  in  his  stead  by  the  court,  it  was  held  that  the 
proper  mode  of  making  such  new  trustee  a  party,  was  by  sup- 
plemental complaint.  If  he  had  been  the  only  party  defendant, 
a  new  original  complaint  would  have  been  proper.     Johnson  v. 


554  REVIVOR,  AND  SUPPLEMENTAL  PLEADING. 

Snyder,  7  How.  395.  It  was  also  held,  in  that  case,  that  the  set- 
ting out  the  contents  of  the  original,  in  the  supplemental  com- 
plaint, though  perhaps  unnecessary,  was  not  a  demurrable 
objection. 

"Where  new  matter,  occurring  subsequent  to  the  service. of 
the  original  complaint,  requires  to  be  pleaded,  a  supplemental 
complaint  will,  in  all  cases,  be  necessary.  Such  new  matter  can- 
not be  introduced,  bjT  way  of  amendment  of  the  original  plead- 
ing ;  and,  if  so  introduced,  will  be  stricken  out.  Hornfager  v. 
Hornfager,  6  How.  13,  1  C.  E.  (N.  S.)  180. 

This  defect  is,  however,  capable  of  waiver,  by  a  defendant 
made  a  party  by  amendment,  in  case  he  appear  generally.  The 
insertion  of  allegations  of  this  nature  by  amendment,  is  an  irre- 
gularity, but  does  not  render  the  pleading  an  absolute  nullity, 
where  no  substantial  rights  are  affected.  Beck  v.  Stephani,  9 
How.  193. 

When  cross  actions,  the  one  for  assault,  and  the  other  for 
slander,  had  been  brought  between  the  same  parties,  and  the  de- 
fendant in  slander  had  pleaded  the  assault  of  his  adversary  in 
mitigation  of  damages,  and  that  action  had  been  first  tried,  and 
a  verdict  for  six  cents  damages  found  in  consequence;  the  defend- 
ant in  assault  was  allowed  to  put  in  a  supplemental  answer, 
pleading  the  facts  of  the  former  trial.  Bradley  v.  Houtaling,  4 
How.  251. 

Although  a  supplemental  answer  is  clearly  a  substitute  for 
the  old  plea  of  "puis  darrein  continuance"  it  differs  from  it  in 
this  respect,  that  it  may  be  put  in  at  any  time,  and  not,  as  for- 
merly, with  reference  to  the  last  continuance.  When  the  facts 
sought  to  be  pleaded,  amount  to  an  entire  satisfaction  of  the 
cause  of  action,  and,  if  established,  will  utterly  extinguish  the 
rights  of  the  plaintiff,  it  is  the  duty  of  the  court  to  allow  the 
application,  without  regard  to  the  time  of  its  making.  Brought 
v.  CurtU8t  8  How.  66. 

Where,  however,  the  facts  sought  to  be  pleaded,  were  known 
to  the  defendanl  at  the  time  of  his  former  answer,  leave  to  file 
a  supplemental  one  w;ts  refused.  Houghton  v.  Skinner,  5  How- 
ard, 420. 

A  plaintiff  who  has  continued  an  equity  cause  by  bill  of  re- 
vivor and  supplement,  cannot  afterwards  discontinue,  without 
payment  of  tlie  costs  of  both  suits  from  the  beginning.  Fisher 
v.  Hall  9  How.  269. 


REVIVOR,  AND  SUPPLEMENTAL  PLEADING.  555 

Applications  to  be  brought  in,  by  Persons  not  Parties.] — Analo- 
gous to  the  subject  of  supplemental  pleading,  is  the  power  of 
persons,  not  parties  to  the  suit,  but  interested  in  its  result,  to 
apply  for  leave  to  be  brought  in  as  such,  under  sec.  122.  This 
subject  has,  however,  been  already  fully  considered  in  the  pre- 
vious chapter  on  parties.  See  that  chapter,  sec.  31,  and  the 
cases  there  cited. 


556  JOINDER  OF  ISSUE,  CONSOLIDATION,  &c. 


BOOK     VIII. 

OF  PROCEEDINGS  BETWEEN  ISSUE  AND  TRIAL. 


CHAPTER   I . 

joinder  op  issue,  general    consequences  of,  including 
Consolidation  of  causes. 

The  pleadings  having  thus  been  brought  to  a  close,  issue  be- 
tween the  parties  is  now  definitively  joined,  and  ready  for  trial. 

§  173.   Issue,  generally  considered. 

Principal  Issues.] — The  issues  so  joined  are  thus  defined  by 
the  Code,  in  sees.  248  to  251  inclusive: 

§  248.  Issues  arise  upon  the  pleadings,  when  a  fact  or  conclusion  of 
law  is  maintained  by  the  one  party,  and  controverted  by  the  other. 
They  are  of  two  kinds: 

1.  Of  law  ;  and, 

2.  Of  fact. 

fcj  i.'l!».  An  issue  of  law  arises, 

J.    Upon  a  demurrer  to  the  complaint,  answer,  or  reply,  or  to  some 
part  thereof. 
§  250.  An  issue  <»f  fact  arises, 

1.  Upon  a  material  allegation  in  the  complaint  controverted  by  the 
answer  ;  or, 

2.  Upon  new  matter  in  the  answer  controverted)  either  by  the  reply, 
or  by  the  Bpecia]  provisions  <>f  Bee.  L68;  or, 

.').    I  '[ion  new  ni;il  ler  in  the  reply. 

§  251.  [siuei,  both  "f  law  and  of  fact,  may  ari^e  upon  different  parts 
of  the  pleadings  in  the  Bame  action.  In  such  eases,  the  issues  of  law 
must  be  first  tried,  unless  the  court  otherwise  direct. 


JOINDER   OF  ISSUE,   CONSOLIDATION,  Ac.  557 

In  Van  Gieson  v.  Van  Gieson,  12  Barb.  520,  1  C.  R.  (N.  S.) 
414,  it  was  held  that  a  sufficient  issue  was  taken,  by  an  answer 
averring  payment  of  a  promissory  note  sued  upon,  without  any 
reply  being  put  in  ;  and  the  following  definition  of  an  issue  is 
given:  "An  issue  is  joined,  where  there  is  a  direct  affirmation 
or  denial  of  the  fact  in  dispute;  and  it  makes  no  difference 
whether  the  affirmative  or  the  negative  is  first  averred." 

It  will  be  seen  that,  by  the  above  clauses,  three  distinct  spe- 
cies of  issue  are  created  : 

1.  The  issue  of  law  pure :  arising  where  the  defendant  de- 
murs alone  to  the  adverse  pleading,  without  answering  or  reply- 
ing to  it,  as  to  the  facts. 

2.  The  issue  of- fact :  where  the  defendant  simply  answers  or 
replies  to  such  adverse  pleading,  without  taking  any  separate 
objection  in  law  thereto,  or  to  any  part  thereof;  and, 

3.  The  mixed  issue  ;  where  the  defendant  demurs  to  part,  and 
answers  part  of  the  complaint,  or  demurs  thereto  by  answer,  in 
respect  of  latent  defects ;  or,  where,  in  like  manner,  the  reply 
demurs  in  part  to  the  answer,  and  alleges  new  matter  in  avoid- 
ance as  to  the  residue. 

The  mode  in  which  an  issue,  when  joined,  is  brought  to  trial, 
and  the  preliminaries  necessary  for  that  purpose,  will  form  the 
subject  of  the  succeeding  chapters. 

Characteristics  of.~\ — The  issue  of  law  being  complete  upon 
the  pleadings,  no  preparation  is  necessary  for  the  purpose  of 
bringing  it  to  trial,  except  the  ordinary  proceedings  of  noticing 
and  setting  down  the  cause.  In  issues  of  fact,  however,  or 
mixed  issues,  various  preliminary  proceedings  may  be  required, 
before  the  cause  is  in  a  fit  state  for  submission  to  the  court  or 
jury;  to  the  consideration  of  which,  the  chapters  immediately 
succeeding  will  be  devoted. 

Though  belonging  more  peculiarly  to  that  portion  of  the 
work  which  treats  of  Trial,  the  case  of  Warner  v.  Wigers,  2 
Sandf.  635,  may  be  here  noticed,  as  applicable  to  the  provision 
that  the  issues  of  law  shall  be  first  tried,  unless  the  court  shall 
otherwise  direct.  The  Superior  Court  there  held  that,  where 
the  issue  of  fact  had  been  actually  tried  before  the  issues  of  law, 
without  objection  at  the  time,  and  on  regular  notice  by  both  par- 
ties, it  was  to  be  deemed  as  having  been  first  tried  by  order  of 
the  court ;  and  the  future  practice  of  that  tribunal  was  then  an- 


55S  JOINDER  OF  ISSUE,  CONSOLIDATION.  Ac. 

nounced  to  be  as  follows,  viz. : — "  That  whenever  a  cause  was 
moved  on  the  trial  calendar,  in  which  there  was  an  issue  of  law 
pending,  the  court  would  then  determine  whether  the  issue  of 
fact  should  be  first  tried,  or  not,  and  it  should  not  be  necessary 
to  obtain  a  previous  order  on  the  subject.'' 

Another  observation  may  be  made  with  respect  to  mixed  is- 
sues. In  the  case  of  demurrer  by  answer,  where  the  facts  in 
respect  of  which  the  demurrer  arises,  are,  of  necessity,  contro- 
verted by  the  plaintiff  under  the  statutory  general  issue,  pro- 
vided for  by  the  last  amendment  of  sec.  168,  a  conjoint  trial  of 
the  issues  of  law  and  fact  is  now  inevitable,  however  the  ques- 
tion might  have  stood  previous  to  that  enactment ;  unless  the 
coarse  sugg  ssted  in  the  d<  cisi  osl    I  >w  cited  be  adopted. 

In  T7(i   Fan  ■:■■-'  Loan  and  Trust  Cvmjxiny  v.  Hunt,  1  C.  R. 

(N.  S.)  1.  (a  ease  where  the  on  raised  was  the  pendency  of 

ss  action  for  relief,  which  the  defendant  was  entitled  to 

.  m,  under  his  answer  as  put  in.")  it  was  considered  that  a  re- 
ference, to  inquire  whether  the  two  proceedings  were  for  the 
same  sause,  agreeably  to  the  former  chancery  practice,  would  be 

the  prop - :.    The  point  was  not,  however,  directly  decided , 

the  motion  having  ienied  on  other  grounds.    This  conclu- 

sion is  supported  '  •  v.  I      is,  1  C.  K.  (N.  St)  34S.  where 

the  same  doctrine  is  held,  with  I  !  to  the  defence  of  another 

ction  pending,  set  up  by  answer.  The  practice  is  one  of  ob- 
vious convenience,  and,  in  the  event  of  a  question  of  this  nature 
arising,  an  application  in  the  above  form  may  be  safely  recom- 
mended. The  principle  that  issues  of  law  should  be  first  tried, 
I  in  Cochr.i  i  v.  Webb,  -i  Sandf.  658. 

'  p.] — In  addition  to  the  above,  another  descrip- 

tion ss  may  be  noti  i.  .  .  issue  upon  a  collateral  feet, 
not  joined  upon  the  pleadings,  but  triable  by  3S     rder  of 

the  cour',  in  place  of  the  fei ..  -    le  under  the  former  | 

The  provision  of  the  Code  in  this  r  -  -  contained  in 

7.  -      Hows:  — 

insl      !         r     ".in    ihe 
sue,  or  wi 
'. 
jury,  an  order  for  1  plainly, 

the  tHr  &1  all  be  the  only 

.1. 


JOINDER  OF  ISSUE,  CONSOLIDATION,  Ac.  559 

This  form  of  issue  is  peculiarly  applicable  in  divorce  cases. 
See  Eules  67,  68  and  69  of  Supreme  Court. 

In  cases  not  falling  under  section  253,  and  therefore  primarily 
triable  by  the  court,  a  special  issue  of  an  analogous  nature  may 
be  obtained.     See  Eule  70. 

In  this  case,  a  motion  must  be  made  for  the  purpose,  within 
ten  days  after  issue  joined,  and  the  court  or  judge  may  then 
settle  the  issues,  or  refer  it  to  a  referee  to  do  so,  as  there  pre- 
scribed. "When  once  joined,  this  form  of  issue  is  triable  in  the 
ordinary  manner. 

Preliminary  Proceedings  between  Issue  and  Trial.  General 
Notice.'] — Before  an  issue  of  fact,  either  simple  or  mixed,  can 
advantageously  be  brought  to  trial,  several  interlocutory  pro- 
ceedings may  often  be  necessary  or  advisable.  They  may  be 
divided  into  three  general  classes : 

1.  Proceedings  with  a  view  to  bring  on  the  trial  of  the  issues 
joined,  at  onCe,  without  going  through  the  ordinary  forms. 

2.  Proceedings  with  a  view  to  the  more  convenient  or  advan- 
tageous trial  of  those  issues,  in  the  ordinary  mode. 

3.  Proceedings  with  a  view  to  the  preservation  of  the  subject- 
matter  of  the  controversy,  pendente  lite,  or  to  the  satisfaction  of 
admitted  portions  of  the  plaintiff's  demand : 

Which  will,  accordingly,  be  treated  of  in  the  above  order. 


§  174.     Consolidation  of  Causes. 

When  more  than  one  suit  has  been  commenced  by  the  same 
plaintiff  against  the  same  defendant,  in  respect  of  causes  of 
action  which  may  be  joined,  the  latter  possesses  the  power  of 
moving  that  such  proceedings  be  consolidated;  and,  where  one 
of  such  suits  is  pending  in  the  Supreme  Court,  that  tribunal  may 
order  the  proceedings  in  other  courts  to  be  consolidated  with 
that  within  its  own  cognizance.  This  is  a  proceeding  under  the 
old  practice.  The  statutory  provisions  on  the  subject  will  be 
found  at  2  K.  S.  383 ;  the  two  first  sections  of  art.  IV.,  chap. 
VI.  of  Part  III.  The  application  should  be  made  in  the  second 
suit  commenced;  if  made  in  the  first,  it  cannot  be  entertained. 
Farmers1  Loan  and  Trust  Company  v.  Hunt,  1  C.  E.  (N.  S.)  1. 
The  plaintiff  also  possesses  the  power  of  consolidating  suits 


560  JOINDER  OF  ISSUE,  CONSOLIDATION,  Ac. 

commenced  against  joint  and  several  debtors.  See  third  section 
of  same  article.  Where  two  suits  for  the  same  cause  of  action 
are  pending  in  the  courts  of  different  States,  although  the  pen- 
dency of  such  other  suit  in  another  State  is  not  a  ground  of 
demurrer,  (see  Burrowes  v.  Miller,  2  C.  R.  101,  5  How.  51,)  nor 
can  any  order  be  made  interfering  with  the  jurisdiction  of  the 
sister  tribunal ;  still,  on  manifest  oppression  being  shown,  the 
court  will  so  far  grant  relief,  as  to  suspend  all  proceedings  in  the 
New  York  cause,  until  the  plaintiff  shall  have  elected  in  which 
suit  to  proceed,  and  shall  have  suspended  the  other  accordingly. 
Hammond  v.  Ba7cer,  3  Sandf.  704 ;  1C.R.  (N.  S.)  105. 

The  principle  of  compelling  the  defendant  to  elect  was  ex- 
tended, in  the  Farmers''  Loan  and  Trust  Company,  v.  Hunt,  1  C. 
R.  (N.  S.)  1,  and  Fabbrieotti  v.  Launiiz,  3  Sandf.  743,  1  C.  R.  (N. 
S.)  121,  to  the  case  of  a  party,  seeking  to  avail  himself  of  matter 
pleaded  by  way  of  recoupment,  and  in  respect  of  which  he  had 
likewise  brought  a  cross  action.  It  was  decided  that,  on  a 
proper  application,  (which,  it  was  held  in  the  former  case,  ought 
to  be  made  in  the  cross  action,)  he  might  be  put  to  his  election, 
either  to  proceed  in  his  suit,  or  to  confine  himself  to  his  recoup- 
ment. "  If  he  elect  the  former,  then  he  maybe  prohibited  from 
setting  up  the  matter  in  this  suit;  if  the  latter,  then  the  pro- 
ceedings in  the  former  action  may  be  stayed." 

Where,  too,  several  suits  against  the  same  defendant  depend 
upon  one  question,  the  court  will  stay  those  subsequent  to  the 
first,  the  defendant  stipulating,  if  unsuccessful  therein,  to  contest 
only  the  question  of  damages  in  the  others.  Mac  Farlan  v. 
Clark,  2  Sandf.  699. 

In  Clark  v.  The  Metropolitan  Bank,  5  Sandf.  065,  where  the 
plaintiff  had  commenced  sixty-four  separate  suits  for  penalties, 
and  which  suits  wen;  divisible  into  two  main  classes,  the  motion 
for  an  actual  consolidation  was  denied,  in  the  first  instance,  but, 
on  terms  that  the  plaintiff  was  to  notice  and  bring  to  trial  one  suit 
of<  and  that  the  proceedings  in  the  other  suite  were  to 

be  stayed  until  after  the  trial  of  those  selected:  with  liberty  to 
the  defendants  in  the  regaining  causes,  after  such  trials,  to  renew 
their  motion  for  b  consolidation,  or  further  stay;  and  alike 
liberty  to  the  plaintiff  to  move  for  a  consolidation,  unless  the 
defendants  in  the  remaining  causes  should  consent  to  abide  the 
ultimate  result  of  the  proceedings  in  the  former;  in  which 
event,  the  plaintiff  was  not  to  be  entitled  to  any  further  costs, 
for  putting  the  subsequent  causes  on  the  calendar. 


PROCEEDINGS  TO  ACCELERATE  DECISION.  561 

The  court,  however,  will  not  grant  a  remedy  of  this  descrip- 
tion, when  the  effect  would  be  to  prejudice  the  rights  of  any  of 
the  parties.  Thus,  when  a  receiver  of  the  property  of  an  in- 
solvent corporation  had  been  obtained,  at  the  suit  of  a  judgment 
creditor,  under  the  statute,  proceedings  for  the  appointment  of 
a  receiver,  at  the  suit  of  a  creditor  at  large,  were  refused  to 
be  stayed;  because,  though  the  proceedings  in  the  judgment 
creditors'  action  might  be  amended,  so  as  to  make  it  a  proceed- 
ing for  the  benefit  of  all  interested,  it  was  in  the  option  of  the 
plaintiff  whether  he  would  amend  or  not ;  and,  because  a  re- 
striction imposed  on  the  receiver  in  the  proceedings  under  the 
statute,  that  he  should  do  nothing  in  hostility  to  rights  of  the 
judgment  creditor,  deprived  him  of  a  power  most  essential  to 
the  doing  complete  justice  in  the  premises.  Dambman  v.  The 
Empire  Mill,  12  Barb.  441. 

The  proper  period  for  a  motion  of  this  description,  is  after 
answer  put  in;  and,  if  the  plaintiff  amend  his  complaint,  it 
should  be  deferred  until  after  the  second  answer.  Leroy  v.  Be- 
dell, ICE.  (N.  S.)  201.  The  form  of  notice  for  that  purpose 
will  be  found  in  the  Appendix. 


CHAPTER    II. 

OF  PROCEEDINGS  FOR  THE  PURPOSE  OF  BRINGING  THE  CAUSE 
TO  A  SPEEDIER  DECISION. 


§  175.     Motion  for  Reference. 

The  proceeding  for  the  above  purpose,  more  peculiarly  appli- 
cable to  this  stage  of  the  action,  is  the  motion  for  a  reference ; 
which,  in  effect,  brings  on  the  cause  for  immediate  trial,  without 
the  necessity  of  its  awaiting  its  turn,  or  taking  its  place  upon 
the  regular  calendar  of  the  court ;  and  accordingly,  when  this 
course  is  admissible,  it  presents  obvious  advantages.  Keferences 
may  be  defined,  as  consisting  of  three  kinds : 

1.  Eeference  of  the  whole  issue,  or  of  any  one  or  more  of  the 
issues  in  the  action,  for  decision  by  the  referee. 
36 


562  PROCEEDINGS  TO  ACCELERATE  DECISION. 

2.  Keference  to  take  an  account,  for  the  information  of  the 
court. 

3.  Interlocutory  references,  of  questions  not  bearing  upon  the 
main  issue. 

The  succeeding  observations  will  be  confined  more  peculiarly 
to  the  subject  of  obtaining  an  order  for  any  of  the  above  pur- 
poses, at  the  stage  of  the  action  now  under  consideration;  and 
the  general  incidents  of  the  order  thus  obtained.  The  proceed- 
ings before  the  referees,  when  duly  appointed,  will  be  entered 
upon  hereafter,  in  the  chapter  entitled  Trial  by  Keferees. 

The  reference,  at  this  stage  of  the  cause,  may  be  either  by 
consent,  or  on  special  application.  The  following  are  the  pro- 
visions of  the  Code  upon  the  subject,  as  contained  in  sections 
270  and  271: 

§  270.  All  or  any  of  the  issues  in  the  action,  whether  of  fact  or  of 
law,  or  both,  may  be  referred,  upon  the  written  consent  of  the  parties. 

§271.  Where  the  parties  do  not  consent,  the  court  may,  upon  the 
application  of  either,  or  of  its  own  motion,  except  where  the  investiga- 
tion will  lequire  the  decision  of  difficult  questions  of  law,  direct  a  refer- 
ence in  the  following  cases  : 

1.  Where  the  trial  of  an  issue  of  fact  shall  require  the  examination  of 
a  long  account  on  either  side ;  in  which  case,  the  referees  may  be 
directed  to  hear  and  decide  the  whole  issue,  or  to  report  upon  any 
specific  question  of  fact  involved  therein ;  or, 

2.  Where  the  taking  of  an  account  shall  be  necessary  for  the  infor- 
mation of  the  court,  before  judgment,  or  for  carrying  a  judgment  or 
order  into  effect;   or, 

3.  Where  a  question  of  fact,  other  than  upon  the  pleadings,  shall 
arise,  upon  motion  or  otherwise,  in.  any  stage  of  the  action. 

Bij  (foment.] — When  the  reference  is  by  consent,  of  course 
there  will  be  no  difficulty  in  obtaining  the  sanction  of  the  court 
to  this  proceeding.  All  that  is  required  will  be  to  obtain  a 
regular  order,  upon  the  consent  thus  given.  This  can  be  done 
ex  j)<irt<-  by  a  judge  out  of  court;  but  the  order,  when  obtained, 
should  Ik;  duly  served  upon  the  opposite  {tarty. 

In  Ludiii'jlou  v.  '/'///,  10  Hail).  117,  whore  the  parties  had 
consented  to  appoint  a  referee,  to  tftke  evidence  and  report,  as 
though  he  had  been  appointed  by  <»nlor,  it  was  held  that  they 
were  concluded  l»y  their  stipulation,  and  that  no  objection  could 
be  taken  to  the  report,   on   the  ground  that  no  preliminary 


PROCEEDINGS  TO  ACCELERATE  DECISION.  563 

decree  had  been  made.     See,  also,  Whalen  v.  The  Supervisors  of 
Albany,  6  How.  278. 

In  Keator  v.  The  Ulster  and  Delaware  Plank  Road  Company, 
7  How.  41,  an  oral  consent,  given  by  the  counsel  for  both  par- 
ties, in  open  court,  and  acted  upon  by  the  entry  of  an  order 
appointing  a  referee,  was  held  to  be  binding,  and  that  such  con- 
sent, so  acted  upon,  rendered  a  written  stipulation  unnecessary, 
and  was  a  complete  waiver  of  the  right  to  require  a  trial  in  any 
other  way,  even  though  the  cause  was  not  otherwise  referable. 
That  right,  once  gone,  could  not  be  recovered,  and  the  reference 
was,  therefore,  valid  and  binding. 

A  parol  consent  to  refer,  entered  by  the  clerk  of  the  court, 
or  by  the  referees  in  their  minutes,  will  also  be  effectual  for  the 
same  purpose.     Leaycroft  v.  Fowler,  7  How.  259. 

A  written  consent,  if  obtained,  must  not  be  altered  in  any 
manner,  or  the  proceedings  under  it  will  be  wholly  void,  and 
the  opposite  party  may  disregard  any  order  so  obtained,  and 
proceed  to  trial  as  if  no  consent  had  been  given.  Haner  v. 
Bliss,  7  How.  246. 

By  Motion,  on  Notice.'] — Where,  however,  a  consent  cannot  be 
obtained,  it  is  competent  for  either  party,  at  this  stage,  to  make 
a  formal  application  for  the  purpose.  The  reference  on  the 
motion  of  the  court,  belongs  to  a  later  period  of  the  action,  and 
will  be  treated  of  in  connection  with  trial  in  general. 

That  the  present  is  the  proper  stage  of  the  action  at  which  to 
make  a  motion  of  the  above  description,  is  evident  from  the 
case  oiEnos  v.  Thomas,  4  How.  290,  where  it  was  held  that  it 
is  competent  for  the  plaintiff  to  move  to  refer  the  cause,  imme- 
diately the  issue  is  complete  by  the  service  of  a  reply,  and  that, 
without  waiting  the  expiration  of  the  twenty  days,  during 
which  the  defendant  is  at  liberty  to  amend  his  answer.  Nor 
can  a  subsequent  amendment  defeat  the  reference,  unless  there 
thereby  ceases  to  be  an  issue,  either  of  fact  or  law,  between  the 
parties. 

This  last  view  is  in  analogy  with  that  taken  in  Cusson  v. 
Whalon,  5  How.  302 ;  ICE.  (N.  S.)  27,  before  cited,  in  rela- 
tion to  giving  notice  of  trial. 

The  application  should  be  made  by  motion,  on  due  notice, 
and  supported  by  affidavit  of  the  party  applying.  Two  circum- 
stances must  appear,  positively  and  affirmatively,  on  suGh  affi- 
davit, viz.: 


564  PROCEEDINGS  TO  ACCELERATE  DECISION. 

1.  That  the  trial  of  the  issue  of  fact  joined,  involves  the 
examination  of  a  long  account. 

2.  That  the  investigation  will  not  require  the  decision  of 
difficult  questions  of  law. 

Both  of  these  conditions  are  essential  to  the  power  of  the 
court  to  grant  a  reference  at  all,  at  this  stage  of  the  cause,  or 
extending  to  the  trial  of  the  whole  issue.  If  difficult  questions 
of  law  are  involved,  those  questions  must  first  be  passed  upon 
by  the  court  itself;  after  which,  if  requisite,  a  consequential 
reference  may  be  ordered,  under  subdivision  2  of  sec.  271,  for 
the  purpose  of  carrying  the  judgment  into  effect.  If  a  long 
account  be  not  involved,  the  cause  cannot  be  referred  at  all. 
Of  course,  these  last  observations  only  apply  to  the  case  of  a 
reference  adversely  obtained.  On  a  reference  by  consent,  any 
issue  whatever,  whether  of  fact  or  law,  and  whether  difficult  or 
otherwise,  may  be  referred,  under  sec.  270.  See  Ludington  v. 
Ta/t,  above  cited. 

If  the  motion  be  opposed,  it  is,  of  course,  competent  for  the 
adverse  party  to  bring  forward  affidavits  in  opposition;  and,  if 
he  can  make  it  clearly  appear  that  difficult  questions  of  law 
will  arise,  the  application  cannot  be  granted.  The  existence 
and  nature  of  those  questions  must,  however,  be  set  forth  clear- 
ly, and  with  sufficient  detail,  so  as  to  enable  the  court  to  come 
to  a  conclusion,  as  to  whether  they  are  or  are  not  of  sufficient 
importance  to  debar  the  moving  party  from  obtaining  the  facili- 
ties he  asks  for.  The  motion  for  a  reference  being  in  analogy 
with  that  under  the  old  practice,  the  books  on  that  subject  may 
be  consulted,  with  regard  to  this  and  other  similar  points.  The 
former  statute  law  on  the  question  will  be  found  in  art.  IV., 
title  VI.,  chap.  VI.,  of  part  III.  of  the  Revised  Statutes,  2  K.  S. 
383  to  386. 

Form  of  Application.'] — The  form  of  a  notice  of  motion  of 
the  above  nature,  and  of  the  ordinary  affidavit  in  support,  will 
be  found  in  the  Appendix. 

The  affidavit,  as  there  given,  should  contain  the  names  of  a 
person  or  persons,  not  exceeding  three,  proposed  as  referees 
by  the  moving  parly,  when  be  18  prepared  to  name  them,  as  he 
ought  always  to  be.  For  the  affidavits  in  opposition,  it  is,  of 
OORrse,  impossible  to  give  any  definite  form,  as  their  nature 
must  depend  upon  the  circumstances  of  each  particular  case. 


PROCEEDINGS  TO  ACCELERATE  DECISION.  5(J5 

The  only  necessary  remark  appears  to  be,  that  the  objection  to 
the  order  should  always  be  taken,  in  some  portion  of  the  affida- 
vit, in  the  precise  words  of  the  statute,  i.  e.,  "  That  the  investi- 
gation will  require  the  consideration  of  difficult  questions  of 
law,"  or,  that  the  trial  of  the  issue  "  does  not  require  the  exami- 
nation of  a  long  account;"  and,  where  the  reference  is  not 
objected  to,  per  se,  but  the  opposition  is  made  on  the  ground 
of  objections  to  the  referees  proposed,  the  party  should  give 
the  names  of  a  counter-referee  or  counter-referees,  not  exceed- 
ing three,  as  proposed  on  his  part,  in  order  to  give  the  court 
an  opportunity  of  making  a  proper  selection.  In  case  the  par- 
ties cannot  agree  on  this  subject,  the  appointment  now  rests 
with  the  court  in  all  cases.  Under  the  Code  of  1849,  a  more 
complicated  system  was  provided  with  respect  to  New  York 
causes ;  but  that  provision  is  now  repealed,  and  the  same  form 
of  practice  is,  for  the  future,  to  prevail  throughout  the  State. 
The  third  referee,  appointed  under  the  provisions  so  repealed, 
was  held  in  Renouil  v.  Harris,  2  Sandf.  641,  1  C.  E.  125,  2  C. 
R.  71,  to  be  competent  to  act  at  once,  without  any  further 
agency  on  the  part  of  the  judge.  In  Leaycroft  v.  Fowler,  7 
How.  259,  a  third  referee  was  added  by  the  consent  of  the  par- 
ties, and  an  oral  consent  entered  on  the  minutes  of  the  two 
acting  referees  was  held  to  be  sufficient  for  that  purpose. 

The  court  possesses,  however,  the  power  of  supervision  in 
all  cases,  even  where  the  referees  have  been  actually  agreed 
upon  by  the  parties;  and,  unless  it  is  satisfied  that  the  selection 
is  a  proper  one,  the  order  appointing  the  referees  so  agreed 
upon  may  be  denied,  notwithstanding  the  stipulation;  and, 
if  the  referees  proceed  without  authority,  their  report  will  be 
null.  Litchfield  v.  Burwett,  5  How.  341,  1  C.  R.  (N.  S.)  42,  9 
L.  0.  182.  In  Whalen  v.  The  Supervisors  of  Albany,  however, 
6  How.  278,  it  was  considered  that  the  stipulation  between  the 
parties  is  sufficient  to  confer  jurisdiction  upon  the  referee,  and 
that  the  court  would  feel  bound  to  cure  the  apparent  defect,  by 
the  entry  of  an  order  nunc  pro  tunc :  but,  of  course,  this  does 
not  affect  the  principle  laid  down  in  Litchfield  v.  Burivell,  that 
it  is  competent  for  the  court  to  deny  such  an  order,  when  not 
satisfied  with  the  selection.  It  is  clear  that,  in  all  cases,  that 
order  ought  to  be  applied  for  and  obtained  in  the  first  instance. 

Though  the  original  appointment  or  preliminary  proceedings 
of  referees  may  have  been  defective  upon  other  points,  still,  if 


566  PROCEEDINGS  TO  ACCELERATE  DECISION. 

the  parties  proceed  before  them  without  objection,  the  defect 
will  be  waived.  Renouil  v.  Harris,  2  Sandf.  641,  1  C.  R.  125, 
2  C.  E.  71 ;  Whalen  v.  The  Supervisors  of  Albany,  before  cited. 
See  also  Garcie  v.  Sheldon,  3  Barb.  232.  The  above  doctrine 
does  not,  however,  extend  to  the  objection  that  the  court  had 
no  jurisdiction  to  make  the  reference  at  all,  which,  on  the  con- 
trary, may  be  raised  at  any  time.  Renouil  v.  Harris  is  also 
authority  that  a  reference  of  "  the  cause,"  without  limitation, 
embraces,  as  of  course,  the  right  to  decide  upon  all  or  any  of 
the  issues  joined  in  it.  This  branch  of  the  subject  seems,  how- 
ever, more  properly  to  belong  to  the  questions  as  to  trial  by 
referees,  considered  in  a  subsequent  chapter. 

In  McMaster  v.  Booth,  4  How.  427,  3  C.  R.  Ill,  it  was  held 
that  an  action  based  on  carelessness  or  negligence  could  not  be 
referred,  even  although  the  examination  of  a  very  long  account 
of  items  of  damages  was  involved,  and  "  the  reasons  for  a  re- 
ference, on  the  score  of  convenience  and  economy  of  time, 
were  of  the  most  cogent  character."  A  leaning  to  the  same 
conclusion  is  evinced  in  Boyce  v.  Comstock,  1  C.  R.  (N.  S.)  290, 
and  Gray  v.  Fox,  1  C.  R.  (N.  S.)  334. 

The  former  of  these  cases  is  based  upon  the  view,  that  the 
provisions  of  the  Revised  Statutes  above  alluded  to,  under 
which  actions  on  contract  were  alone  referable,  are  unaffected 
by  the  Code.  The  broad  language  of  section  271  of  the  latter, 
appears,  however,  to  have  been  overlooked  by  the  learned 
judge  in  pronouncing  his  opinion,  and  the  authority  of  the  case 
seems  very  questionable.  A  precisely  contrary  decision  was 
given  in  Sheldon  v.  Wood,  3  Sandf.  739,  1  C.  R.  (N.  S.)  118, 
where  it  was  held  that  the  Code  authorizes  a  reference  in  all 
actions  whatever;  and  one  was  accordingly  granted  in  an 
action  sounding  in  tort,  the  examination  of  a  long  account 
being  involved  in  that  case  also. 

Where,  however,  the  actual  taking  of  a  long  account  is  not 
necessarily  involved,  a  reference  to  assess  mere  damages  cannot 
be  obtained.  Damages,  as  such,  should  in  all  cases  be  assessed 
by  a  jury.     Hewitt  v.  Howell,  8  How.  346. 

In  Whale  v.  Whale,  1  0.  R.  115,  an  application  for  a  reference 
to  take  testimony  in  a  divoroe  ease  was  refused,  though  made 
on  the  written  consent  of  both  parties,  the  adultery  alleged  being 
denied  by  the  answer.  The  provisions  in  the  rules  of  the  Su- 
preme Court,  NoSi  64  to  71   inclusive,  though  authorizing  and 


PROCEEDINGS  TO  ACCELERATE  DECISION.  567 

rendering  such  a  reference  imperative,  in  cases  of  failure  to 
answer,  or  omission  to  deny  the  allegations  in  the  complaint, 
appear  to  exclude  a  case  of  the  above  nature,  where  an  issue  of 
fact  has  actually  been  joined.  A  reference  to  take  testimony 
alone,  seems,  indeed,  not  to  be  within  the  provisions  of  the 
Code,  above  cited ;  unless  perhaps  upon  collateral  questions  of 
fact  not  bearing  upon  the  main  issue,  under  the  powers  of  sub- 
division 3.     See  Flagg  v.  Munger,  3  Barb.  9,  2  C.  E.  17. 

Had  the  consent  been,  on  the  contrary,  to  refer  the  issue  so 
joined,  there  exists  no  doubt  but  that  a  reference  of  that  nature 
might  have  been  ordered.  See  anonymous  decision  to  this  ef- 
fect, 3  C.  R.  139. 

In  an  action  for  divorce  on  the  above  ground,  a  reference  can- 
not be  granted,  even  after  default,  on  a  complaint  not  sufficiently 
specific.     Ileyde  v.  Ileyde,  4  Sandf.  692. 

Nor  can  such  a  reference  be  granted,  where  the  wife  is  defend- 
ant, whilst  the  proceeding  remains  incomplete,  for  want  of  the 
appointment  of  a  next  friend.  Meldora  v.  Meldora,  4  Sand- 
ford,  721. 

Although,  in  general,  where  the  examination  of  a  long  ac- 
count is  involved,  it  is  almost  a  matter  of  right  to  ask  for  a  re- 
ference ;  it  is  by  no  means  a  perfect  matter  of  course  to  grant 
it  in  all  cases.  Thus,  in  Sheldon  v.  Weeks,  7  L.  0.  57,  where  the 
examination  of  a  long  account  was  dependent  upon  the  decision 
of  the  issues  of  fact  in  the  cause,  and  would  be  altogether  unne- 
cessary, if  the  plaintiff  failed  to  obtain  a  decree  on  those  issues, 
a  reference  was  refused.  See  to  the  same  effect,  Graham  v. 
Golding,  7  How.  260. 

It  seems  too,  that,  where  the  question  between  the  parties  has 
been  narrowed  to  a  simple  issue,  by  stipulations  on  the  part  of 
the  defendant,  the  court  will  not  order  a  reference  under  these 
circumstances,  though,  under  the  pleadings  as  they  originally 
stood,  without  regard  to  the  stipulation,  the  examination  of  a 
long  account  would  have  been  necessary.  Mullin  v.  Kelly,  3 
How.  12. 

In  Steiuart  v.  Elwell,  3  0.  R.  139,  it  was  held  that  an  account 
containing  many  items,  yet  being  of  a  single  purchase  made  at 
one  time,  was  not  a  long  account  so  as  to  warrant  a  reference ; 
this  view  being  in  accordance  with  various  cases  decided  to  the 
same  effect,  under  the  old  practice. 

Where,  however,  the  case  does  embrace  the  examination  of 


568  PROCEEDINGS  TO  ACCELERATE  DECISION. 

a  long  account,  it  is  no  objection  to  a  motion  for  a  reference, 
that  it  has  once  been  tried  by  a  jury.  Brown  v.  Bradshaw,  1 
Duer,  635,  8  How.  176. 

In  an  action  brought  by  an  attorney,  for  professional  services, 
a  reference  of  the  specific  question  as  to  the  amount  of  com- 
pensation due,  analogous  to  a  taxation  under  the  old  practice, 
will  be  admissible ;  the  amount  so  fixed  will  not,  however,  be 
conclusive  on  the  trial  of  the  cause,  but  may  be  enlarged  or 
diminished  by  the  jury.  Bovjman  v.  Sheldon,  1  Duer,  607,  11 
L.  0.  219. 

In  partition,  where  two  or  more  of  the  parties  interested  de- 
sire to  have  their  shares  set  off,  to  be  enjoyed  in  common,  (see 
Laws  of  1847,  p.  537,)  an  interlocutory  order  of  reference  will 
be  granted  for  that  purpose.    Northrop  v.  Anderson,  8  How.  351. 

An  order  of  reference,  in  a  case  referable  in  its  nature,  is  not 
appealable.  Bryan  v.  Brennan,  7  How.  359  ;  Bean  v.  The  Em- 
pire State  Mutual  Insurance  Company,  9  How.  69. 

When  once  the  cause  is  before  the  referee,  the  court  will  not 
interfere  with  his  discretion  on  the  subject,  even  at  his  own 
request.  The  parties  must  wait  till  the  report  has  been  made, 
and  then  come  to  the  court  for  its  opinion.  Schermerhorn  v. 
Develin,  1  C.  E.  28.  For  further  remarks  on  the  subject  of  re- 
ferences in  general,  see  the  subsequent  chapter  on  trial  by 
referees,  above  alluded  to. 

Another  class  of  references,  of  an  analogous,  and  yet  of  a 
distinct  nature  from  the  above,  are  those  in  the  real  estate  pro- 
ceedings of  partition,  foreclosure,  and  admeasurement  of  dower, 
and  likewise  in  divorce,  where  no  issue  of  fact  has  been  raised 
upon  the  pleadings,  as  to  the  right  of  the  plaintiffs  to  obtain 
those  remedies.  They  are,  in  some  measure,  analogous,  inas- 
much as  the  whole  of  the  questions  in  the  suit  are,  in  fact, 
decided  in  these  cases  by  the  referees;  and  yet  they  are  dis- 
tni'i,  mil-much  as  the  proceeding  there  taken  is  more  in  the 
nature  of  one  for  carrying  into  effect  a  judgment  previously 
obtained  by  default,  than  of  pronouncing  a  decision  in  the 
cause.  Such  references  partake,  in  fact,  of  the  nature  of  special 
proceedings,  though  mentioned  here,  inasmuch  as  the  proper 
time  for  applying  for  them  LB  immediately  upon  the  completion 
of  the  pleadings.  In  relation  to  partition,  see  Northrop  v. 
Anderson,  above  cited. 

Interlocutory  references,  and  references  for  the  information  of 


PROCEEDINGS  TO  ACCELERATE  DECISION.  569 

the  court,  will,  as  before  stated,  be  hereafter  considered  under 
their  proper  divisions. 

§  176.  Other  Proceedings. 

Motion  to  dismiss.'] — Before  passing  on  to  the  next  head  pro- 
posed, the  subject  of  the  defendant's  remedy,  in  case  of  unrea- 
sonable delay  on  the  part  of  the  plaintiff,  remains  to  be  con- 
sidered. His  course,  in  the  event  of  the  latter's  neglect  to  serve 
a  copy  of  the  complaint,  after  demand,  has  been  before  ad- 
verted to. 

By  section  274,  the  following  provision  is  made  in  the  former 
respect:  "The  court  may  also  dismiss  the  complaint,  with  costs, 
in  favor  of  one  or  more  defendants,  in  case  of  unreasonable 
neglect  on  the  part  of  the  plaintiff  to  serve  the  summons  on 
other  defendants,  or  to  proceed  in  the  cause  against  the  defend- 
ant or  defendants  served." 

By  Rule  21  of  the  Supreme  Court,  the  practice  on  this  de- 
scription of  application  is  thus  defined  and  laid  down : 

Whenever  an  issue  of  fact  shall  have  been  joined  in  any  action,  and 
the  plaintiff  therein  shall  fail  to  bring  the  same  to  trial,  according  to  the 
course  and  practice  of  the  court,  the  defendant  may  move  for  the  dis- 
missal of  the  complaint  with  costs. 

If  it  is  made  to  appear  to  the  court  that  the  neglect  of  the  plaintiff 
to  bring  the  action  to  trial  was  not  unreasonable,  the  court  shall  permit 
the  plaintiff,  on  payment  of  costs,  to  bring  the  said  action  to  trial,  at 
the  next  Circuit  Court,  where  the  same  is  triable. 

The  rule  above  cited  is,  in  effect,  a  continuation  of  the  former 
chancery  practice  on  a  motion  to  dismiss  for  want  of  prosecu- 
tion, the  former  remedies  being  extended,  so  as  to  embrace  the 
case  of  the  plaintiff's  neglect  to  serve  the  summons  upon  other 
defendants.  As  yet,  no  case  appears  to  have  arisen  upon  this 
last  branch  of  the  section,  though  this  subject  of  relief  might 
be  of  great  importance,  under  certain  circumstances,  and  in 
cases  of  joint  and  several  liability. 

The  proper  period  for  a  motion  to  dismiss  for  want  of  prose- 
cution, is  evidently  that  at  present  under  consideration,  viz: 
the  intermediate  stage  between  the  joinder  of  issue  between  the 
plaintiff  and  the  defendant  making  such  application,  and  the 
actual  trial  of  the  cause.  This  motion  must  not  be  confounded 
with  the  taking  of  judgment  by  default,  when  the  cause  is  re- 


570  PROCEEDINGS  TO  ACCELERATE  DECISION. 

gularly  called  on  ;  a  proceeding  widely  different  in  its  nature, 
though  analogous  in  its  practical  effect. 

The  motion  for  this  purpose  must,  of  course,  be  brought  on 
upon  the  usual  notice,  and  must  be  grounded  upon  an  affidavit, 
showing  the  neglect  complained  of.  The  notice  should  follow 
the  exact  words  of  the  section  and  rule  above  cited,  or  both, 
adapted  to  the  exact  state  of  circumstances  complained  of.  The 
same  rules  should  be  observed  with  respect  to  the  affidavit. 

In  cases  where  there  has  been  a  neglect  to  revive  an  abated 
suit,  on  the  part  of  the  representatives  of  a  deceased  plaintiff,  a 
motion  of  this  nature  will  be  the  proper  course.  See  this  sub- 
ject fully  considered,  and  cases  cited,  in  the  last  chapter  of  the 
preceding  book,  under  the  head  of  Eevivor. 

In  Iloyt  v.  Loomis,  1  C.  E.  128,  it  was  held,  (as  appears  clear 
from  the  provisions  themselves,)  that  any  one  defendant  in  a 
suit  is  entitled  to  make  a  motion  of  this  description,  notwith- 
standing the  others  may  not  have  answered.  See,  likewise, 
Luce  v.  Trempert,  9  How.  212. 

A  defendant,  who  has  not  been  served,  cannot,  however,  vol- 
untarily appear  and  make  a  motion  of  this  description,  where 
his  rights  are  not  positively  affected.  Tracy  v.  Reynolds,  7 
How.  827. 

In  an  equity  suit,  pending  before  the  Code,  a  motion  of  this 
description  was  refused,  when  the  defendant  himself  was  in  a 
situation  to  notice  the  cause,  and  take  a  judgment  by  default  in 
the  usual  manner.  It  is  proper,  only  when  there  are  other  de- 
fendants, against  whom  the  cause  is  not  in  readiness  forbearing, 
in  consequence  of  the  plaintiff's  neglect  to  expedite.  Per  Ed- 
monds,  J.,  in  Lee  v.  Brush,  3  C.  E.  165,  subsequently  more  fully 
reported,  3  C.  11.  220.  This  doctrine  does  not,  however,  ap- 
pear to  hold  good,  in  relation  to  causes  of  the  ordinary  de- 
scription. 

In  Gubboti  ViWhalon,  6  How.  302,  1  C.  E.  (N.  S.)  27,  it  was 
held,  that  a  defendant  in  a  suit  under  the  Code,  may  move  for  a 
dismissal  of  the  complaint  with  costs,  under  this  section,  with- 
out noticing  the  cause.  The  mere  calling  such  an  order  a  judg- 
n,< 'lit  as  in  case  of  nonsuit,  iii  the  notice  of  motion,  does  not 
mislead,  and  will  be  disregarded.  Undoubtedly,  the  more  cor- 
rect practice  will  1"'  to  follow  the  words  of  the  section. 

It  was  Likewise  held, that  the  defendant  will  be  in  a  situation 
to  make  a  motion  of  this  description,  if  the  plaintiff  fail  to  bring 


PROCEEDINGS  TO  ACCELERATE  DECISION.  571 

on  the  cause,  the  first  circuit  or  term  after  issue  has  been  ac- 
tually joined  by  the  service  of  a  reply,  provided  the  defendant's 
time  to  amend  have  then  elapsed,  or  in  case  he  have  waived 
that  right,  by  noticing  the  cause  for  trial  himself,  or  otherwise. 
It  seems,  however,  that  a  defendant  cannot  obtain  any  thing 
beyond  a  dismissal  of  the  complaint,  under  this  section  ;  and 
that,  if  he  require  other  relief  against  the  plaintiff,  his  only 
remedy  will  be  to  bring  on  the  cause  for  trial,  on  the  usual 
notice.     See  Wilson  v.  Wheeler,  6  How.  49,  1  C.  R.  (K  S.)  402. 

The  last  conclusion  is  affirmed  by  Boy  v.  Thompson,  1  Duer, 
636,  8  How.  283.  It  is  also  held,  that  an  omission  on  the  part 
of  the  defendant  to  notice  the  cause,  will  not  prejudice  his  right 
to  move,  on  his  showing,  b}'  affidavit,  that  the  cause  was  at 
issue  in  time  to  have  been  set  down,  and  that,  at  the  term  for 
which  it  ought  to  have  been  noticed,  younger  issues  have  been 
tried. 

The  motion  for  this  purpose,  when  made  by  a  defendant  who 
has  attended  prepared  for  trial,  but  has  not  noticed  the  cause, 
and  grounded  upon  the  plaintiff's  failure  to  bring  it  on  at  the 
circuit,  must  be  made  with  due  diligence,  and  should  be  noticed 
for  the  earliest  succeeding  term.  If  not  so  made,  costs  may  be 
refused  to  be  imposed.     See  Whipple  v.  Williams,  4  How.  28. 

In  Bishop  v.  Morgan,  1  C.  E.  (K  S.)  340,  where  the  plaintiff 
had  served  the  summons  on  one  defendant,  and  noticed  the 
cause  for  trial,  but  failed  to  bring  it  on,  in  consequence  of  his 
inability  to  serve  another  who  was  absent  from  the  State,  and 
the  defendant  served,  had  not  himself  noticed  the  cause  ;  a  mo- 
tion to  dismiss,  on  the  part  of  the  latter,  was  granted,  unless  the 
plaintiff  should  pay  the  costs  of  the  term  and  of  the  motion,  and 
stipulate  to  bring  on  the  cause  for  trial  next  term.  "  The  court 
had  come  to  the  conclusion,"  it  was  said,  "  that  the  Code  con- 
templated such  a  motion  in  a  case  like  the  present ;  and  that, 
if  the  plaintiff  notices  a  cause  for  trial,  and  puts  it  on  the  cal- 
endar, he  is  bound  to  bring  it  to  trial  when  it  is  reached." 

In  McCarthy  v.  Hancock,  6  How.  28,  1  C.  R.  (N.  S.)  188, 
where  the  defendant  alone  had  noticed  the  cause  for  trial,  but 
had  omitted  to  move  at  the  circuit,  on  the  plaintiff's  default  to 
appear,  it  was  decided  that  he  could  not  subsequently  move, 
under  the  provisions  above  cited. 

Where  a  defendant,  otherwise  entitled  to  move  to  dismiss, 
had  been  offered  his  costs  of  the  circuit  by  the  plaintiff,  but 


572  PROCEEDINGS  TO  ACCELERATE  DECISION. 

had  neglected  to  take  any  steps  to  make  out  or  adjust  them,  so 
as  to  enable  him  to  give  the  plaintiff  notice  of  the  amount,  and 
to  be  prepared  to  receive  them,  his  motion  for  the  above  pur- 
pose was  denied,  with  costs.    Hawley  v.  Seymour,  8  How.  96. 

In  Williams  v.  Sage,  1  C.  E.  (N.  S.)  358,  it  was  held  that  a 
motion  of  this  description  was  not  admissible  on  the  part  of  a 
defendant,  on  the  ground  of  the  plaintiff's  having  declined  to 
proceed  with  the  hearing  of  the  cause  before  a  referee;  and 
the  application  was  denied  accordingly,  though  the  referee  had 
refused  to  proceed  ex  parte.  See  Holmes  v.  S locum,  6  How.  217, 
1  C.  R  (N.  S.)  380.  The  "  referee,"  it  was  held,  "should  have 
proceeded  on  the  defendant's  notice,  and,  in  the  absence  of 
evidence  on  the  part  of  the  plaintiff,  reported  in  favor  of  the 
defendant,"  and  the  latter's  proper  course  was  to  obtain  such  a 
report.  See,  likewise,  Thompson  v.  Krider,  8  How.  248.  See, 
also,  this  question  as  hereafter  considered  under  the  head  of 
Trial  by  Referees. 

In  Crawford  v.  Whitehead,  1  C.  R.  (K  S.)  345,  an  order  to 
dismiss  was  granted,  the  plaintiff  being  dead,  leaving  no  per- 
sonal representative  within  the  State ;  and  no  definite  prospect 
of  a  revivor  being  shown,  beyond  the  mere  expression,  on  the 
part  of  the  plaintiff's  attorney,  of  a  hope  to  be  able  to  get  one 
appointed. 

A  defendant  may  lose  his  original  right  to  move  for  a  dis- 
missal, by  improper  delay.  Thus,  where  a  notice  that  no  fur- 
ther proceedings  would  be  taken,  had  been  served  on  behalf  of 
the  plaintiff,  but  the  defendant  continued  to  put  the  cause  on 
the  calendar  for  a  number  of  terms,  and  afterwards  moved  that 
the  cause  be  discontinued,  the  motion  was  denied,  the  plaintiff 
being  then  desirous  of  proceeding;  and  it  was  held  that  the 
defendant  should  have  moved  for  a  dismissal  of  the  cause,  if 
reached  during  the  term  in  which  the  plaintiff's  notice  was  re- 
ceived, or,  if  not,  then  at  the  special  term;  and  that  he  could 
recover  no  costs  for  the  subsequent  notices,  which  were  charac- 
terized as  a  needless  proeccding. 

A  motion  of  this  nature  is  maintainable,  in  respect  of  an  in- 
curable  defect  in  the  complaint,  at  any  stage  of  the  proceedings, 
however  advanced,     I'>unih<uu  v.  I><-  liwoisc,  8  How.  159. 

Voluntary  Dismissal  In/  I'luiiitiJJ.'] — It  is,  of  course,  competent 
for  a  plaintiff  to  move  to  dismiss  his  own  complaint,  at  any  time 


PROCEEDINGS  TO  ACCELERATE  DECISION.  573 

before  trial,  on  payment  of  costs  to  the  defendants  who  have 
appeared,  and  possibly  without  such  payment,  under  circum- 
stances of  hardship,  where  he  has  been  taken  by  surprise  by 
the  defence ;  as,  for  instance,  by  the  pleading  of  an  insolvent's 
discharge,  when  the  fact  of  such  insolvency  was  unknown  to 
him  at  the  time  the  suit  was  first  brought.  A  plaintiff,  however, 
who  has  once  obtained  a  decree,  cannot  afterwards  obtain  an 
order  to  dismiss  his  own  bill,  unless  with  the  consent  of  all  the 
defendants.     Picabia  v.  Everard,  4  How.  113. 

Short  Causes,  Hearing  of,  in  First  District.] — The  following 
special  Rule  has  been  made  by  the  judges  of  the  Supreme  Court 
in  this  district,  in  analogy  to  the  English  practice  in  Chancery, 
of  setting  apart  one  day  in  each  week,  for  the  hearing  of  short 
causes,  certified  as  such  by  counsel.  It  has  been  and  is  exten- 
sively acted  upon,  and  is  eminently  calculated  to  obviate,  in 
part,  the  inconvenience  occasioned  by  the  great  pressure  on  the 
Circuit  Calendar  in  that  district.  A  plaintiff,  adopting  this 
course,  adopts  it,  however,  at  the  risk  of  his  cause  losing  its 
original  priority,  in  the  event  of  the  application  being  made,  in 
a  case  really  and  properly  contested  by  the  defendant,  and  not 
capable  of  being  fitly  disposed  of  within  the  limited  time  al- 
lowed. The  courts  are  strict  in  enforcing  this  penalty  under 
these  circumstances,  and  the  result  of  such  an  application,  so 
made,  will  be  delay,  instead  of  acceleration. 

The  following  is  the  order  in  question : 

SPECIAL  CIRCUIT  CALENDAR. 

At  any  circuit,  until  further  orders,  any  causes  belonging  to  either 
of  the  two  following  classes,  may  be  placed  on  a  special  circuit  calen- 
dar, unless  the  trial  is  likely  to  occupy  more  than  one  hour : 

1st.  Where  the  action  is  on  contract,  and  the  answer  merely  denies 
the  allegations  in  the  complaint,  without  setting  up  any  new  matter. 

2d.  Where  the  actionis  on  contract,  and  new  matter  is  set  up  in  the 
answer,  and  there  shall  be  reason  to  believe  that  the  defence  is  made 
only  for  the  purposes  of  delay. 

To  entitle  the  cause  to  be  placed  on  such  calendar,  the  plaintiff's  at- 
torney must  give  notice,  four  days  before  any  Monday  in  the  circuit, 
that  he  will  move  on  such  Monday  to  have  the  cause  placed  on  such 
calendar;  and  the  motion  will  be  heard  on  such  Monday,  and,  if  granted, 
the  cause  may  be  heard  on  the  following  Friday. 


574  CHANGE  OF  VENUE. 

If  the  motion  be  founded  on  the  belief  that  the  defence  is  for  delay, 
affidavits  must  be  served  at  the  time  of  notice. 

The  plaintiffs  attorney  must  also  deliver  to  the  clerk  of  the  circuit, 
a  like  notice  also,  four  days  before  such  Friday,  containing  also  the 
number  of  the  cause  on  the  general  circuit  calendar. 

The  same  motion  may  be  made  on  any  day  before  the  judge  at 
chambers,  on  notice  of  four  days. 

If  the  cause  shall  actually  occupy  more  than  one  hour  on  the  trial, 
the  trial  may  be  suspended  at  the  discretion  of  the  court,  and  the  cause 
be  put  down  at  the  foot  of  the  calendar. 


CHAPTER    III. 


OF    THE    CHANGE    OF    VENUE. 


This  subject  has  been  partially  entered  upon  in  a  previous 
chapter,  in  reference  to  the  ordinary  application,  on  the  ground 
of  the  venue  being  laid  in  a  wrong  county,  on  demand  to  that 
effect  under  section  125 ;  that  form  of  proceeding  can  only, 
however,  be  adopted  before  answer,  as  there  provided.  See 
that  chapter  and  the  cases  there  cited,  as  respects  that  form  of 
application,  and  likewise  as  to  the  question  as  to  what  will  or 
will  not  be  considered  the  "proper  county,"  with  reference  to 
the  nature  of  the  proceeding,  the  residence  of  the  parties,  or 
the  jurisdiction  of  the  court.  It  will  be  there  seen  that,  in 
actions  of  a  strictly  local  nature,  the  demand  that  the  trial  be 
had  in  the  proper  county  is  a  matter  of  right ;  and,  likewise, 
that  the  convenience  <»i'  witnesses  will  form  no  bar  to  applica- 
tion on  the  preliminary  ground  in  the  first  instance,  it'  made  in 
due  time. 

Tin;  application  now  in  question  is  of  a  totally  different  na- 
ture, and  is  inadmissible  altogether  at  the  stage  of  the  action  at 
which  ili''  other  is  appropriate,  resting,  as  it  does,  on  wholly 
different  grounds. 


CHANGE  OF  VENUE  575 

§  177.     Motion  to  Change  Venue. 

Powers  of  the  Court.'] — In  the  Codes  of  1848  and  1849,  no  pro- 
vision whatever  was  made,  as  regards  this  branch  of  the  subject, 
though  relief  of  that  nature  was  uninterruptedly  administered 
by  the  courts,  under  their  former  powers.  Express  provision 
is,  however,  now  made  by  the  amendment  of  1851,  in  the  latter 
portion  of  section  126,  which  runs  as  follows : 

The  court  may  change  the  place  of  trial  in  the  following  cases  : 

1.  When  the  county  designated  for  that  purpose  in  the  complaint  is 
not  the  proper  county. 

2.  When  there  is  reason  to  believe  that  an  impartial  trial  cannot  be 
had  therein. 

3.  When  the  convenience  of  witnesses  and  the  ends  of  justice  would 
be  promoted  by  the  change. 

When  the  place  of  trial  is  changed,  all  other  proceedings  shall  be 
had  in  the  county  to  which  the  place  of  trial  is  changed,  unless  other- 
wise provided  by  the  consent  of  the  parties,  in  writing,  duly  Bled,  or 
order  of  the  court;  and  the  papers  shall  be  filed  or  transferred  accord- 
ingly. 

It  would  seem  by  this  section  as  it  now  stands,  that  the  court 
possesses  power  to  change  the  venue  at  any  time,  on  the  ground 
that  it  has  been  laid  in  the  wrong  county,  even  though  the 
defendant  may  have  omitted  to  make  a  demand  to  that  effect  in 
the  first  instance,  as  provided  for  by  the  preceding  clause.  The 
more  usual  grounds,  however,  on  which  an  application  of  this 
nature  will  have  to  be  made,  will  be  those  named  in  the  second 
and  third  subdivisions. 

The  practice  on  motions  of  this  description  is  now  distinctly 
defined  by  Rules  44  and  45  of  the  Supreme  Court,  which  run  as 
follows : 

Rule  44. — No  order  to  stay  proceedings  for  the  purpose  of  moving 
to  change  the  place  of  trial  shall  be  granted,  unless  it  shall  appear 
from  the  papers,  that  the  defendant  has  used  due  diligence  in  preparing 
for  the  earliest  practicable  day  after  issue  joined.  Such  order  shall  not 
stay  the  plaintiff  from  taking  any  step,  except  giving  notice  and  subpoe- 
naing witnesses  for  the  trial,  without  a  special  clause  to  that  effect.  On 
presenting  to  and  filing  with  the  officer  granting  the  order,  an  affidavit, 
showing  such  facts  as  will  entitle  the  plaintiff,  according  to  the  settled 
practice  of  the  court,  to  retain  the  place  of  trial,  the  officer  shall  revoke 


576  CHANGE  OF  VENUE. 

the  order  to  stay  proceedings;  and  the  plaintiff  shall  give  immediate 
notice  of  such  revocation  to  the  defendant's  attorney. 

Rulk  45. — In  addition  to  what  has  usually  been  stated  in  affidavits 
concerning  venue,  either  party  may  state  the  nature  of  the  controversy, 
and  show  how  his  witnesses  are  material ;  and  may  also  show  where 
the  cause  of  action,  or  the  defence,  or  both  of  them,  arose.  Addi- 
ditional  facts  will  be  taken  into  consideration  by  the  court,  in  fixing  the 
place  of  trial. 

Mode  of  Application.'] — The  above  rules  settle  the  question  as 
to  the  proper  time  of  making  a  motion  this  description.  It  is 
only  appropriate  after  issue  joined,  but  then  it  must  be  made  at 
once  and  without  delay,  or  the  remedy  will  be  lost. 

Before  the  adoption  of  those  rules,  the  question  as  to  the 
proper  period  for  making  this  peculiar  application  was  much 
debated.  In  one  class  of  cases  it  was  held  that  it  was  only  ap- 
propriate at  the  outset  of  the  cause,  and  before  issue  joined.  See 
Beardsley  v.  Dickerson,  4  How.  81 ;  Schenck  v.  McKie,  Id.  246,  3 
C.  R.  24,  and  Myers  v.  Feeter,  Id.  240.  In  another,  the  view 
was  taken  which  has  since  been  carried  out  in  the  rules  above 
cited,  viz.:  that  immediately  upon  the  joinder  of  issue  will  be 
the  fitting  period.  See  Lynch  v.  Mbsher,  4  How.  86,  2  C.  R.  54 ; 
Clark  v.  Pettibone,  2  C.  R.  78 ;  Barnard  v.  Wheeler,  8  How.  71 ; 
Mixer  v.  Kuhn,  4  How.  409,  3  C.  R.  106 ;  Hartman  v.  Spencer,  5 
How.  135.  See  likewise,  Mason  v.  Broivn,  6  How.  481 ;  Hinchman 
v.  Butler,  7  How.  462.  The  actual  joinder  of  issue  will  govern, 
without  regard  to  any  objections  that  may  have  been  informally 
made:  as,  for  instance,  in  relation  to  a  reply  objected  to,  but 
unsustainably,  on  the  ground  of  imperfect  verification. 

The  application  must  be  made  upon  notice  of  motion,  which 
should  be  in  the  usual  form,  following  the  exact  words  of  the 
subdivision  on  which  the  application  is  grounded,  and  it  should 
include  in  its  terms  an  interim  stay  of  proceedings,  if  such  stay 
be  requisite,  as,  otherwise,  no  measure  on  the  part  of  the  plain- 
till'  will  be  suspended,  except  only  the  actual  preparations  for 
trial.  See  Rule  I  1.  A  form  is  given  in  the  Appendix.  The  mo- 
tion niii.-i.  as  before  stated,  be  made  with  all  possible  diligence. 
The  proceeding  is,  in  all  respects,  similar  to  that  under  the  old 
practice,  tin:  books  as  to  which,  and  the  eases  there  cited,  may 
be  consulted.  See,  in  particular,  Note  at  4  Hill,  62,  (Brittan  v. 
/'  abody.) 

It  must  be  grounded  on  affidavit  made  by  the  party  himself, 


CHANGE  OF  VENUE.  577 

or  reasons  shown  why  it  is  not  so  made,  in  the  same  form  as 
was  usual  under  the  former  practice ;  and,  as  heretofore,  it  is 
absolutely  essential  that  the  usual  affidavit  of  merits  should 
either  be  incorporated  in,  or  should  accompany  that  moved  on. 
See  Lynch  v.  Mbsher,  4  How.  86  ;  2  C.  K.  54 ;  and  Mixer  v. 
Kuhn,  4  How.  409,  3  C.  E.  106,  before  referred  to.  See  also, 
Jordan  v.  Garrison,  6  How.  6,  1  C.  R.  (N.  S.)  400.  The  affida- 
vit of  merits,  and  its  requisites,  will  be  found  considered  here- 
after, under  the  head  of  Preparations  for  Trial. 

The  affidavit  itself  must  conform  in  all  respects  to  Rule  44, 
as  above  cited.  See  form  in  Appendix.  Though  couched  in  lan- 
guage of  permission,  the  wording  of  that  rule  amounts,  in  fact, 
to  a  requisition  that  the  affidavits  on  such  an  occasion  should 
be  explicit  on  the  points  there  referred  to. 

It  is  not  necessary  to  make  any  formal  demand  whatever, 
preliminary  to  a  motion  of  this  description,  as  in  the  case  of  an 
application  under  subdivision  1  of  the  section  in  question. 
Hinchman  v.'  Butler,  7  How.  462. 

Prior  to  the  making  of  the  rules  above  cited,  it  was  held 
that  the  delay  of  a  term  would  not  be  a  positive  bar  to  a  motion 
to  change  the  venue,  unless  the  defendant  had  been  clearly 
guilty  of  laches  in  not  moving  earlier :  if  such  were  the  case, 
it  would  form  a  sufficient  ground  for  denying  the  motion.  Lynch 
v.  Mosher,  4  How.  85,  2  C.  R.  54,  before  cited.  In  that  case, 
however,  although  laches  had  been  committed,  in  not  moving  at 
once,  the  plaintiff  had  not  suffered  by  it,  in  consequence  of  an 
accidental  circumstance,  which  would  have  prevented  the 
cause  from  being  tried,  if  it  had  been  regularly  on  the  calendar. 
Under  these  circumstances,  liberty  was  given  to  the  defendant 
to  renew  the  motion,  (which  was  denied  on  other  grounds,)  pro- 
vided he  did  so  at  once,  and  so  as  not  to  delay  the  plaintiff.  It 
seems  doubtful  whether  this  doctrine  holds  good,  under  the 
rules,  as  they  now  stand. 

Motion  on  ground  of  Prejudice.'] — On  the  motion  under  subdi- 
vision 2,  it  will  evidently  be  necessary  to  make  out  a  very  clear 
case,  showing  that  an  impartial  trial  cannot  be  had,  in  the  dis- 
trict nominated  by  the  plaintiff.  The  bias  of  the  courts  will  be 
strongly  in  favor  of  retaining  the  place  of  trial,  unless  "the 
inability  to  obtain  a  fair  and  unprejudiced  jury  be  clearly  estab- 
lished." The  People  v.  Wright,  5  How.  23  ;  3  C.  R.  75.  The 
37 


578  CHANGE  OF  VENUE. 

mere  existence  of  excitement  in  the  county,  and  of  the  matter 
in  question  having  been  the  subject  of  newspaper  discussion, 
and  the  expression  of  the  belief  of  the  witnesses  who  swore  to 
those  facts,  that  it  was  "very  doubtful"  whether  a  fair  and  im- 
partial trial  could  be  had  in  the  county  of  venue,  were  there 
considered  insufficient  grounds  for  a  change,  on  the  ground  of 
local  prejudice.  The  cases  under  the  old  practice  will  be  found 
collected  in  the  opinion.  The  exertion  of  undue  or  improper 
influence  on  the  part  of  one  of  the  parties,  if  sworn  to,  would, 
however,  in  all  probability  form  a  sufficient  ground  for  such  a 
motion.  See  The  People  v.  Webb,  1  Hill,  179,  as  there  com- 
mented upon. 

Convenience  of  Witnesses.] — The  same  case,  i.  e.,  The  People  v. 
Wright,  is  very  explicit  on  the  subject  of  motions  under  subdi- 
vision 3,  i.  e.,  for  a  change  on  the  ground  of  the  convenience  of 
witnesses.  The  county  in  which  the  majority  of  the  witnesses 
reside,  irrespective  of  the  distance  which  those  witnesses  might 
have  to  travel,  was  there  held  to  be  the  governing  principle  in 
all  instances;  and  the  case  of  Hall  v.  Hull,  1  Hill,  671,  is  refer- 
red to  as  settling  the  practice  in  this  respect.  The  conclusion 
of  the  court  is  laid  down  in  the  following  terms:  "  It  appears, 
then,  that  there  is  a  very  large  number  of  witnesses  residing  in 
the  county  of  Eensselaer,  whose  convenience  will  be  best  pro- 
moted by  trying  the  cause  there,  and  that  all  the  facts  to  be 
inquired  into  arose  in  that  county.  That  is,  therefore,  empha- 
tically the  proper  place  for  trial."  These  views  require  some 
qualification,  as  appears  by  the  cases  below  cited. 

If,  however,  it  is  patent  upon  the  pleadings,  that  the  issue, 
on  which  witnesses,  resident  in  another  county,  arc  alleged  to  be 
requisite,  is  obviously  untenable,  the  motion  will  be  denied. 
Hartiiian  v.  Spencer,  5  How.  135. 

The  earlier  cases  on  the  subject  of  the  change  of  venue  will 
be  found  collected,  1  Hill,  p.  629,  et  scq.,  in  the  note  to  the  case 
of  Brittain  v.  Peabodyt  above  referred  to.  It  is  clear  from  them 
that,  if  the  defendants  positively  swear  to  a  greater  number  of 
material  viritnesses  than  the  plaintiff,  the  change  of  venue  is, 
cceteru  paribus^  almost  as  of  course.  The  plaintiff,  in  opposing 
such  a  motion,  must  make,  too,  an  unqualified  affidavit.  Slier- 
wood  v.  Steele,  L2  Wend.,  p.  294.  [n  that  case  plaintiff  swore 
to  one  more  witness  than  the  defendant,  but  in  a  qualified  man- 
ner, under  which  circumstances  the  motion  was  granted. 


CHANGE  OF  VENUE.  579 

Although  the  greater  number  of  witnesses  is  the  more  usual 
element  which  will  govern  the  decision,  it  will  not  do  so  as  of 
course  in  all  cases.  The  value  of  their  testimony,  to  be  shown 
under  the  advice  of  counsel,  will  also  be  taken  into  considera- 
tion, with  reference  to  the  granting  or  denying  such  a  motion. 
Anon.,  1  Hill,  668.  This  last  principle  was  fully  carried  out  by 
Harris,  J.,  in  Bernard  v.  Wheeler,  3  How.  p.  71,  who  states  the 
law  as  follows:  "In  determining  the  question  between  the  par- 
ties, a  preponderance  of  witnesses,  to  say  the  least,  should  not 
be  regarded  as  a  controlling  circumstance.  The  experience  of 
the  entire  legal  profession,  for  many  years,  has  painfully  proved, 
that  very  little  can  be  learned  from  affidavits,  made  upon  a  mo- 
tion to  change  the  venue,  as  to  the  real  number  of  witnesses 
who  will,  in  fact,  be  required  to  attend  upon  the  trial  of  a  cause. 
The  courts  are  authorized  to  order  the  cause  to  be  tried  in  an- 
other court,  on  good  cause  shown  therefor.  In  determining  whe- 
ther such  cause  has  been  shown,  the  court  can  generally  relv 
more  safely,  upon  the  nature  of  the  case  to  be  tried,  and  upon 
the  facts  and  circumstances,  connected  with  the  transactions 
which  are  the  subject  of  investigation  in  the  cause,  than  the 
number  of  witnesses  sworn  to  be  material  by  either  party." 

The  advantage  of  the  affidavit  on  which  the  motion  is  ground- 
ed being  full  and  explanatory,  is  evidenced  by  the  case  of  Jordan 
v.  Garrison,  6  How.  6,  1  C.  E.  (N.  S.)  400.  The  defendant  there 
named  sixteen  witnesses,  and  swore  specifically  as  to  the  testimo- 
ny to  be  given  by  them.  The  plaintiff  swore  to  eighteen  witnesses 
in  the  county  of  venue,  and  also  stated  the  effect  of  their  proba- 
ble testimony.  Only  one  of  those  witnesses,  however,  appeared 
to  be  clearly  necessary,  and  the  plaintiff  had  not  denied  or  ex. 
plained  away  any  of  the  statements  in  the  defendant's  affidavit. 
The  court,  under  these  circumstances,  laid  down  the  principle 
that  the  place  of  trial  of  a  transitory  action,  should  be  in  the 
county  where  the  principal  transactions  between  the  parties 
occurred,  and  where  it  appears  the  largest  number  of  witnesses 
who  know  any  thing  of  the  transaction  sued  upon  reside.  A 
bare  majority  of  witnesses  sworn  to  will  not  necessarily  con- 
trol, unless  their  testimony  be  shown  to  be  material  and  neces- 
sar}^.  A  clearly  exaggerated  statement  as  to  the  number  of 
witnesses  will  not  avail  either  party ;  and  will  even  be  looked 
upon  as  a  fraud  on  the  court.  See  Wallace  v.  Bond,  4  Hill,  536. 
In   The  People  v.  Hayes,  7  How.  248,  it  is  laid  down  that 


580  CHANGE  OF  VENUE. 

"Very  little  reliance  can  be  placed  upon  an  allegation  of  the 
materiality  of  witnesses,  unless  it  be  shown  wherein  they  are 
material."  See,  likewise,  to  the  same  effect  as  the  above,  Ilinch- 
man  v.  Butter,  7  How.  462. 

Similar  principles  to  the  above  are  held  in  King  v.  Vander- 
bilt,  7  How.  385.  In  deciding  motions  of  this  description, 
courts  now,  it  is  said,  look  beyond  the  affidavits  of  the  parties, 
and  the  advice  of  their  counsel,  to  the  pleadings,  and  the  issues 
to  be  tried,  and  determine  from  the  whole  case,  in  which  county 
the  trial  will  accommodate  the  greatest  number  of  witnesses, 
whose  attendance  it  will  be  necessary  for  the  parties  to  secure,  in 
the  reasonable  exercise  of  care  and  prudence  in  preparing  for 
trial.  The  convenience  of  witnesses  is  the  main  consideration, 
but  the  mere  excess  of  numbers  does  not  always  control.  The 
possible  delay,  arising  from  a  change  of  venue,  as  asked  for, 
will  also  not  be  overlooked. 

In  Goodrich  v.  Vanderbilt,  7  How.  467,  it  is  held,  however, 
that,  where  the  transaction  arose  in  the  county  to  which  the 
venue  is  sought  to  be  changed,  the  rule  will  be  to  change  the 
venue,  unless  the  preponderance  of  witnesses  is  so  great,  as  to 
warrant  the  court  in  retaining  the  original  place  of  trial.  The 
suggestion  of  inconvenience  with  regard  to  the  overcrowded 
calendar  of  the  proposed  county,  was  there  obviated,  by  granting 
the  plaintiff  an  election,  within  twenty  days,  to  have  the  trial 
in  one  of  the  neighboring  counties  to  New  York,  the  one  there 
in  question,  subject  to  which  election,  the  order  was  granted. 

In  Mason  v.  Broivn,  6  How.  481,  it  was  held  that  the  actual 
county  of  the  residence  of  the  witnesses,  does  not  govern,  so  much 
as  their  real  and  practical  convenience.  Thus,  where  four  wit- 
nsses  for  the  plaintiff  resided  within  one  mile  of  the  actual  place 
of  trial,  and  the  transaction  in  question  had  arisen  at  that  very 
place,  whilst  the  defendants'  witnesses,  six  in  number,  were  re- 
quired to  prove  general  facts  which  occurred  at  a  distance  from 
their  actual  residence,  the  venue  was  retained.  The  strict  doc- 
trim-  as  1''  'he  residence  of  witnesses,  as  laid  down  in  the  cases 
under  the  "Id  practice,  and  also  in  The  P<'<>plc  v.  Wright,  before 
referred  to,  is  therefore  qualified  to  that  extent. 

Tt  is  evident,  from  the  most  of  the  foregoing  cases,  and  espe- 
cially from  Mason  v.  Brown,  Hinchman  v.  Butler,  and  Goodrich 
v.  Vanderbilt,  that  the  place  where  the  cause  of  action  arose, 
forms  a  very  important  element  in  questions  of  this  nature,  and, 


CHANGE  OF  VENUE.  581 

where  the  other  grounds  for  asking  or  opposing  a  change  are 
nearl}'-  balanced,  will,  as  a  general  rule,  be  decisive  of  the  ques- 
tion. 

The  courts  will  not,  though,  be  necessarily  governed  by  this 
consideration,  if  it  be  shown  that  there  are  more  witnesses  ne- 
cessary to  be  called  upon  the  trial,  residing  in  another  county. 
Beardsley  v.  Dickerson,  4  How.  81. 

The  place  of  trial  was  accordingly  changed  in  that  case,  on 
those  grounds.  Both  parties,  too,  resided  in  the  county  in 
which  there  was  a  majority  of  witnesses,  which  was  stated  by 
the  court,  as  one  amongst  the  reasons  for  granting  the  change 
asked  for. 

The  convenience  of  witnesses  cannot,  however,  be  brought 
forward,  as  an  objection  to  the  formal  motion  for  a  change  of 
venue  into  the  proper  county.  The  consideration  of  that  ques- 
tion belongs  to  a  different  stage  of  the  cause.  Park  v.  Carnley, 
7  How.  357. 

The  plaintiff  may  oppose  a  motion  of  this  description,  on  the 
ground  that  he  has  himself  material  and  necessary  witnesses  in 
the  county  of  venue,  or  near  it,  within  the  State ;  and,  if  he 
swears  unqualifiedly  to  a  number,  equal  to  or  greater  than  that 
brought  forward  by  the  defendant,  and  it  appears  that  such 
statement  is  made  bona  fide,  and  the  balance  of  material  testimony 
is  really  in  his  favor,  it  seems  that  the  venue  will  be  retained  al- 
most as  of  course,  though  not  of  necessity.  See  the  different 
cases  above  cited,  and  the  views  there  held  on  the  subject. 

Under  the  Code  of  1849,  it  was  held  that  a  change  of  the 
place  of  trial  did  not  carry  with  it  a  change  of  the  venue  for 
other  purposes,  but  that,  on  the  contrary,  all  interlocutory  ap- 
plications must  still  be  made  in  the  county  originally  fixed.  See 
Gould  v.  Chapin,  4  How.  185;  2C.  E.  107;  Barnard  v.  Wheeler, 

3  How.  71 ;  Beardsley  v.  Dickerson,  4  How.  81 ;  Lynch  v.  Mosher, 

4  How.  86;  2  C.  E.54  ;  and  Moore  v.  Gardner,  5  How.  243;  3  C. 
R.  224.  The  same  also  was  held  with  reference  to  the  trial  of  an 
issue  of  law,  in  Gould  y.  Ohaptn,  above  cited,  and  WardY.  Davis, 
6  How.  274.  The  same  is  likewise  implied  in  Clark  v.  Van 
Deusen,  3  C.  R.  219;  though,  in  that  case,  the  court  looked  into 
the  materiality  of  such  issue,  and,  on  its  clearly  appearing  to  be 
untenable,  refused  to  entertain  the  objection. 

The  recent  amendment  provides  against  this  inconvenience, 
and  effects  a  change  of  venue,  and  the  consequent  transfer  of 


582  CHANGE  OF  VENUE. 

all  papers  and  proceedings  accordingly,  in  all  cases  where  a 
change  of  place  of  trial  has  been  granted,  unless  express  pro- 
vision be  made  to  the  contrary,  either  by  consent  of  the  parties, 
or  order  of  the  court.  See  likewise,  Mason  v.  Broion,  and 
Hinchman  v.  Butler,  above  cited. 

In  Northrop  v.  Van  Dusen,  5  How.  134,  3  C.  R.  140,  it  is  held 
that,  in  motions  of  this  description,  costs  to  abide  the  event 
will,  as  a  general  rule,  be  allowed,  if  asked  for  in  the  notice, 
but,  if  not,  the  court  has  no  power  to  make  the  order.  This 
precaution  should  therefore  be  taken  in  all  cases.  See  form  in 
Appendix.  The  power  of  the  court  to  give  costs  of  that  nature 
on  such  a  motion,  or  indeed  under  any  circumstances,  has  how- 
ever been  doubted.     See  Johnson  v.  Jillitt,  7  How.  485. 

Defendant's  Course,  on  Order.] — On  a  change  being  granted, 
the  defendant's  attorney  will,  of  course,  see  that  all  papers  and 
proceedings  are  duly  transferred  to  the  clerk  of  the  substituted 
county,  according  to  the  provision  above  referred  to.  In  strict- 
ness, this  is  the  duty  of  the  clerk  of  the  court,  on  the  order 
being  filed  with  him,  (which  must  of  course  be  done,)  and  he  is 
the  responsible  party  in  all  cases;  but  still  it  should  always 
be  looked  to,  both  as  regards  the  transmission  and  the  due 
filing  of  the  proceedings  in  the  substituted  county,  when  trans- 
mitted ;  in  order  to  insure  regularity,  and  avoid  future  incon- 
venience. 

Revocation  of  Stay,  on  Plaintiff's  Application.'] — The  plaintiff's 
remed}'',  in  respect  of  a  stay  of  proceedings,  unduly  obtained  by 
the  defendant,  for  the  purposes  of  a  motion  as  above,  is  pointed 
out  by  Rule  44.  On  affidavit,  showing  such  facts  as  will  entitle 
him  to  retain  the  venue  according  to  the  settled  practice,  he 
may  obtain  a  revocation  of  the  order  to  stay,  from  the  officer 
who  grunted  it.  This  application  may  be  made  ex  parte,  but 
immediate,  notice  of  the  order  of  revocation  must  be  given  to 
the  defendant's  attorney.  Of  course,  this  revocation  only  ope- 
rates u  regards  the  interim  stay  of  proceedings,  and  the  motion 
itself  will  still  come  on,  and  be  decided  on  its  merits,  in  due 
course,  [fthe  defendant  consider  himself  aggrieved  by  a  revo- 
cation so  obtained,  his  better  course  would  be  to  obtain  a  fresh 
order,  to  show  cause  why  the  stay  should  not  still  be  granted, 
with  the  usual  clause,  suspending  proceedings  until  the  return 


PRECAUTIONARY  PROCEEDINGS.  583 

of  that  order.  It  would,  doubtless,  be  competent  to  him,  in 
such  a  proceeding,  to  meet  the  affidavit,  on  which  the  plaintiff 
has  obtained  the  revocation,  by  counter-affidavits  on  his  part 
either  evidencing  his  own  right  to  require  a  change,  or  im- 
peaching the  plaintiff's  statement. 

Disqualification  of  Judge,  Change  for.'] — The  last  point  to  be 
noticed,  is  the  change  of  venue,  in  consequence  of  the  justices 
of  the  district  in  which  the  action  is  triable,  being  disqualified, 
on  the  ground  of  interest,  relationship  to  the  parties,  or  em- 
ployment as  counsel  in  the  matter.  This  subject  is  specially 
provided  for  by  c.  15  of  the  Laws  of  1850,  p.  20,  as  regards 
actions  in  the  Supreme  Court  :  which  enacts  that,  in  such  cases, 
the  court  may,  upon  special  motion,  order  the  action  to  be 
brought  to  argument  in  any  adjoining  district  to  be  specified  in 
such  order,  and  then,  such  cause  shall  be  heard  and  decided  in 
such  district.  This  measure  is,  of  course,  inapplicable  to  courts 
of  strictly  local  jurisdiction,  the  disqualifications  as  to  which, 
where  existent,  are  positive  and  irremovable. 


CHAPTER    IV. 


OF  PROCEEDINGS  FOR  OBTAINING  AN  INSIGHT  INTO  THE  ADVER- 
SARY'S CASE,  OR  FORTIFYING  THAT  OF  TEE  MOVING  PARTY. 


The  measures  for  the  above  purposes,  are  mainly  remedies 
existent  under  the  old  practice,  and  unaffected  by  the  Code,  or 
else  more  properly  referable  to  the  class  of  special  proceedings. 
The  latter  will  be  considered  in  the  present  division  of  the 
work,  such  being  the  more  convenient  arrangement ;  a  detailed 
notice  of  the  former  is  incompatible  with  the  plan  proposed  at 
the  outset. 

All,  however,  may  be  conveniently  alluded  to  at  this  juncture, 
in  order  that  the  attention  of  the  practitioner  may  be  directed 
to  all  the  different  measures  peculiarly  applicable  to  this  stage 
of  the  action,  and  which  it  may  be  in  his  power  to  adopt,  with 
a  view  to  the  proper  preparation  of  the  cause  for  trial. 


584  PRECAUTIONARY  PROCEEDINGS. 

§  178.    Enforcement  of  Admission. 

The  first  of  the  proceedings  in  question  is  one  which,  though 
associated  in  the  Code  with  the  provisions  for  enforcing  the 
discovery  of  books  and  papers,  is  yet  distinguishable  from  those 
provisions,  inasmuch  as  it  is  in  the  power* of  the  party  to  act 
under  the  latter  at  any  time,  whilst  the  former  belongs  to  this 
stage  of  the  action  exclusively,  and  would  not  be  appropriate 
at  any  other.  Although  given  by  the  same  section  as  the  pro- 
visions above  alluded  to,  which  belong  unquestionably  to  the 
class  of  special  remedies;  this,  on  the  contrary,  partakes  rather 
of  the  nature  of  an  ordinary  step  in  the  cause. 

The  enactment  in  question  is  contained  in  the  earlier  portion 
of  sec.  388,  and  runs  as  follows : 

§  388.  Either  party  may  exhibit  to  the  other,  or  to  his  attorney,  at 
any  time  before  the  trial,  any  paper,  material  to  the  action,  and  request 
an  admission  in  writing  of  its  genuineness.  If  the  adverse  party,  or  his 
attorney,  fail  to  give  the  admission,  within  four  days  after  the  request, 
and  if  the  party  exhibiting  the  paper  be  afterwards  put  to  expense,  in 
order  to  prove  its  genuineness,  and  the  same  be  finally  proved  or  admit* 
ted  on  the  trial,  such  expense,  to  be  ascertained  at  the  trial,  shall  be  paid 
by  the  party  refusing  the  admission;  unless  it  appear,  to  the  satisfaction 
of  the  court,  that  there  were  good  reasons  for  the  refusal. 

Although  not  prescribed  in  terms,  the  more  convenient  course 
will  be,  to  accompany  the  exhibition  of  the  document  with  a 
written  notice,  and  request  for  an  admission  as  above ;  the  proof 
of  the  giving  of  which  notice  will,  in  case  of  refusal,  be  more 
convenient  and  more  satisfactory  to  the  court,  than  the  adduc- 
tion of  exclusively  verbal  evidence.  In  ordinary  cases,  a  refusal 
is  not  to  be  anticipated,  and  the  party  applied  to  will  consider 
well  before  he  gives  one;  as,  if  he  take  that  course,  he  does  so 
at  the  risk  of  the  imposition  of  costs.  Where,  however,  any 
real  question  exists,  aa  to  the  genuineness  of  the  document  of 
which  an  admission  is  sought,  such  admission  would  clearly  be 
imprudent;  and  many  other  eases  might  be  suggested,  in  which, 
on  a  bond  fide  refusal,  on  attenuate  grounds,  the  court  would 
never  impose  c<  »sts, 

QtJ  tions  extending  merely  to  the  construction  or  purport  of 
the  instrument  adduced,  apart  from  any  as  to  its  genuineness,  or 
where,  as  must  frequently  1,<;  the  case,  the  genuineness  of  it  is 


PRECAUTIONARY  PROCEEDINGS.  585 

not  in  question,  though  its  real  effect  is,  may  easily  be  guarded 
against,  by  a  special  form  of  admission;  and,  indeed,  no  pro- 
perly drawn  request  will  require  more,  than  a  mere  dispensation 
from  the  necessity  of  giving  technical  evidence  of  the  existence 
of  such  an  instrument. 

In  the  event  of  an  admission  being  refused  without  good 
reason,  and  expenses  being  incurred  in  consequence  of  that 
refusal,  counsel  should  be  careful  to  be  prepared  with  a  state- 
ment, and  to  ask  for  them,  at  the  trial  itself,  as  this  course  is 
expressly  prescribed  by  the  section;  and,  if  omitted,  it  is  very 
doubtful  whether  those  expenses  can  afterwards  be  allowed  in 
the  taxation  of  costs.     It  seems,  indeed,  clear  that  they  cannot. 


§  179.    Discovery,  <$c.    Anticipatory  Notice. 

The  next  proceeding  for  the  purposes  above  mentioned,  and 
which  is,  also,  one  open  to  either  party,  is  the  procuring  an  in- 
spection and  copy,  or  permission  to  take  a  copy,  of  books,  papers, 
or  documents  in  the  hands  of  his  adversary.  It  would  be  need- 
less to  enlarge  upon  the  importance  of  doing  this  at  once,  if 
not  already  done  at  an  earlier  stage,  in  every  instance  where  such 
documents  exist.  The  subject  has  already  been  touched  upon, 
under  the  head  of  the  Defendant's  Proceedings  before  Answer, 
and  will  be  fully  gone  into  in  the  chapters  which  close  this 
division  of  the  work. 

Not  merely  has  the  party  a  right  to  inspect  the  documentary 
evidence  in  his  adversary's  possession,  but  he  has  also  a  right 
to  examine  that  adversary  himself,  upon  oath,  at  any  time 
before  the  trial,  under  the  provisions  of  chapter  VI.,  title  XII., 
part  II.  of  the  Code.  This  proceeding  is  in  evident  substitution 
for  the  old  chancery  practice  on  a  bill  of  discovery,  and  like- 
wise as  to  the  examination  of  the  defendant,  upon  interrogato- 
ries annexed  to,  or  forming  part  of  the  complaint.  It  is  one 
peculiarly  applicable  to  this  stage  of  the  action,  though,  as 
before  noticed,  under  the  head  of  Proceedings  before  Answer, 
it  may  be  taken  earlier.  See  this  subject  fully  considered  in 
the  closing  chapters  of  this  division. 

In  numerous  classes  of  cases,  and. more  especially  in  those 
which,  under  the  old  practice,  would  have  belonged  to  chan- 
cery jurisdiction,  the  importance  of  this  step  is  too  obvious  to 


586  PRECAUTIONARY  PROCEEDINGS. 

admit  of  doubt.  In  strictly  common  law  cases,  it  will,  on  the 
contrary,  be  less  generally  applicable.  The  examination  so 
taken,  may  be  read  upon  the  trial,  if  the  party  is  not  then  called 
upon  to  testify  as  a  witness;  but,  if  he  be  so  called,  it  then  be- 
comes, ipso  facto,  a  nullity,  and,  even  if  he  be  called  to  testify 
on  one  point  only,  the  whole  ground  must  be  gone  over  again. 
When  read,  such  examination  will,  of  course,  be  open  to  all  due 
exceptions,  precisely  as  with  reference  to  the  written  testimony 
of  witnesses  not  produced  at  the  trial,  as  next  referred  to. 


§  180.     Depositions  de  bene  esse. 

The  means  which  at  present  exist  for  taking  the  evidence  of 
witnesses,  accessible  at  the  time,  but  whose  testimony  may  not 
be  available  at  the  trial,  is  the  next  point  to  be  considered, 
where  circumstances  of  this  nature  may  exist.  This  may  be 
done  as  heretofore,  by  an  examination  "  de  bene  esse,11  under  the 
powers  given  for  that  purpose  in  the  Revised  Statutes,  art.  L, 
title  III.,  chap.  VII.  of  part  III.,  2  R  S.  391  to  393.  The  old 
practice  in  this  respect,  remains  perfectly  unchanged  by  the 
Code,  and  may  be  gathered  from  the  works  on  that  subject. 
The  order  for  this  purpose  is  obtainable  from  a  judge  of  the 
court  in  which  the  action  is  pending,  if  a  court  of  record,  ex 
parte,  on  affidavit  of  the  facts ;  and  copies  of  both  the  order  and 
the  affidavit  must  be  served  upon  the  opposite  party.  The 
omission  to  give  proper  notice  to  him  will  be  sufficient  to  prevent 
the  reading  of  the  deposition.  2  R.  S.  393-8-9.  Nixon  v.  Palmer ; 
10  Barb.  175.  The  time  for  the  proposed  examination  must  be 
limited  in  such  order,  and  must  not  exceed  twenty  days  from 
its  date  ;  but,  within  that  limit,  the  appointment  for  that  pur- 
pose rests  in  the  discretion  of  the  judge  applied  to.  It  is  com- 
petent fur  tin;  adverse  party  to  show  cause  against  proceeding 
on  this  examination,  on  proof  that  it  is  unnecessary,  or  that  the 
order  has  been  collusively  obtained.  If  he  do  not  oppose,  or 
fail  in  bringing  proof  <>f  this  nature,  the  officer  granting  the 
order  proceeds  with  the  examination  of  the  witness  in  due  form; 
and  the  written  deposition,  signed  by  the  witness,  and  certified 
by  such  officer,  must  Km;  filed  in  the  office  <>f  the  clerk  of  the 
court  in  which  the  action  is  pending,  within  ten  days,  and  may 
then  bo  used  on  tin-  trial,  on  proof  previously  given,  that  the 


PRECAUTIONARY  PROCEEDINGS.  587 

witness  is  unable  to  attend,  but  not  otherwise ;  and  it  is  compe- 
tent for  the  adversary  to  prevent  the  reading  of  it,  by  proof 
that  the  witnesses'  attendance  could  have  been  obtained  on  suf- 
ficient notice,  (see  Weeks  v.  Lowerrc,  8  Barb.  530,)  or  that  the 
examination  was  not  duly  conducted,  or  due  notice  not  given. 

The  following  cases  have  been  recently  decided,  in  relation  to 
this  proceeding. 

The  party  who  exhibits  the  deposition  on  the  trial,  is  compe- 
tent to  prove  the  absence  of  the  witness  from  the  State.  Harris 
v.  Ely,  Court  of  Appeals,  30th  Dec,  1852 ;  Nixon  v.  Palmer, 
10  Barb.  175.  The  adverse  party  cannot,  however,  be  exa- 
mined for  the  purpose  of  excluding  it.  He  is  interested  in  the 
result,  and  is  incompetent  on  that  ground.  Nixon  v.  Palmer, 
above  cited. 

Although,  by  the  statute,  it  is  provided  that  the  deposition 
must  be  filed  in  the  office  of  the  clerk  of  the  county,  within  ten 
days  from  its  date,  that  provision  is  directory  only,  and,  in  cases 
calling  for  that  indulgence,  may  be  dispensed  with.  Thus,  in 
Burdell  v.  Burdell,  1  Duer,  625,  11  L.  0.  189,  where  a  copy  had 
been  filed  instead  of  the  original,  and  the  plaintiff,  on  discover- 
ing the  mistake,  immediately  applied  for  leave  to  file  the  origi- 
nal nunc  pro  tunc,  the  application  was  granted.  It  is  obvious, 
however,  that  this  indulgence  cannot  be  calculated  upon,  except 
in  extreme  cases.  It  is,  of  course,  competent  for  the  parties  to 
waive  the  filing,  by  positive  stipulation,  which  course  may  be 
convenient,  and  is  not  unfrequently  pursued. 

With  reference  to  the  taking  of  depositions  in  general,  it  may 
be  remarked  that,  under  the  Code  of  1818,  those  of  witnesses 
residing  in  the  State,  but  more  than  one  hundred  miles  from  the 
place  of  trial,  were  allowed  to  be  taken,  in  the  same  mode  as 
testimony  de  bene  esse,  and  to  be  so  read  on  the  trial,  without 
further  proof  of  the  inability  of  the  witness  to  attend.  This 
provision  was  positively  repealed  by  the  act  of  1849,  without 
any  saving  clause.  In  a  case,  where  the  depositions  had  been 
taken,  pending  the  former  measure,  but  the  trial  did  not  come 
on  until  after  the  passing  of  the  latter,  it  was  held  that  such 
depositions  could  not  be  read.  McCotter  v.  Hooker,  1  C.  R,  (1ST.  S.) 
213  and  217. 

The  subject  of  the  perpetuation  of  testimony,  by  special  pro- 
ceeding for  that  purpose,  has  been  already  alluded  to.  The 
proceedings  for  that   purpose,  belong  entirely  to   the   former 


588  PRECAUTIONARY  PROCEEDINGS. 

practice.  The  proceedings  analogous  to  an  examination  of  this 
nature,  under  which  witnesses  may  be  compelled  to  give  evi- 
dence, on  an  interlocutory  proceeding,  have  been  already  alluded 
to  in  a  jorevious  chapter,  under  the  head  of  Motions. 


§  181.     Commission  to  examine  Witnesses. 

The  testimony  of  witnesses  out  of  the  State  may  also  be  pro- 
cured, as  heretofore,  by  means  of  a  commission  for  that  purpose. 
The  Code  contains  no  provision  whatever  on  this  subject,  except 
that  a  party  to  the  action  may  be  so  examined,  (sec.  390,)  and, 
therefore,  the  former  practice  remains  totally  unchanged  in  all 
its  particulars,  and  the  works  on  that  subject  may  be  referred 
to  accordingly. 

The  plan  adopted  at  the  outset  forbids,  as  above  noticed,  the 
entering  into  details,  in  reference  to  this  most  important,  and 
frequently  necessary  proceeding.  The  main  features  of  the 
practice  may,  however,  be  stated  as  follows : 

The  statute  law  upon  the  subject  will  be  found  in  article  II., 
title  III.,  chap.  VII.,  part.  III.  of  the  Eevised  Statutes,  2  E.  S. 
893  to  397.  The  application  can  only  be  made  after  issue 
joined,  and  should,  of  course,  be  made  as  soon  as  practicable 
after  such  joinder.  If  applied  for  at  once,  a  stay  of  proceed- 
ings until  after  the  return,  is  obtainable,  almost  as  of  course; 
but,  if  delayed  unduly,  such  stay  may,  and  probably  will  be 
refused.  The  application  may  be  made  by  either  party,  but 
the  proceeding  is  one  very  usually  taken  by  consent.  See, 
however,  Morse  v.  Ghyes,  and  Cope  v.  Sibley,  below  cited,  in  re- 
lation to  the  possible  effect  of  a  consent,  if  incautiously  or  too 
fully  given.  If  so,  the  consent  of  the  opposite  party  being 
obtained  in  writing,  in  the  usual  form,  the  order  of  the  court  is 
obtained  upon  it,  as  of  course.  Should  any  peculiar  directions 
as  t<>  td^  iit  inn  of  the  commission  be  desirable,  they  should  be 
made  part  of  the  consent,  and  be  Incorporated  in  the  order. 
If,  however,  the  proceeding  be  taken  adversely,  the  party,  or 
his  attorney,  (bul  more  usually  the  latter,)  must  make  an  affi- 
davit, swearing  to  merits  in  th<'  usual  manner,  giving  the  names 
and  residences  of  tin-  witnesses  required  to  be  examined,  and 
averring  that  he  cannot  safely  go  to  trial  without  their  testi- 
mony.    On  this  Affidavit,  an  order  is  obtained  for  the  opposite 


PRECAUTIONARY  PROCEEDINGS.  589 

party  to  show  cause,  on  a  notice  of  at  least  ten  days,  why  a 
commission  should  not  issue  accordingly,  the  proposed  commis- 
sioner or  commissioners  on  the  applicant's  part  being  named. 
A  copy  of  such  order,  and  of  the  affidavit,  should  be  duly 
served  forthwith,  and  the  moving  party  should  also  prepare 
his  interrogatories,  and  serve  a  copy.  On  receipt  of  this  docu- 
ment, the  adverse  party  should  prepare  and  serve  a  copy  of  his 
cross  interrogatories,  and  name  a  commissioner  or  commission- 
ers on  his  part.  The  order  to  show  cause,  comes  on  to  be  ar- 
gued in  due  course,  and,  if  made  absolute,  a  copy  of  the  final 
order  should  be  served.  The  interrogatories  on  both  sides,  if 
not  agreed  upon,  are  then  settled  by  a  judge,  or  other  officer 
empowered  to  perform  the  functions  of  a  judge  at  chambers, 
(see  introductory  chapter,)  on  appointment  for  that  purpose,  of 
which,  notice  must,  of  course,  be  duly  served.  If  so  settled, 
the  interrogatories  and  cross  interrogatories  must  be  signed  by 
the  judge  or  .officer  so  acting.  If,  on  the  contrary,  they  are 
agreed  to  by  consent,  each  is  signed  by  both  attorneys. 

The  interrogatories  being  settled,  the  commission  is  drawn 
up,  the  usual  printed  forms  being  invariably  used  for  that 
purpose,  to  which  are  subjoined  or  annexed,  as  specially  re- 
quired by  the  provisions  of  the  Eevised  Statutes,  fall  instruc- 
tions on  the  subjects  of  its  execution  and  return ;  which  in- 
structions must  be  complied  with  to  the  letter,  or  the  execution 
of  the  commission  will  be  invalid.  If  any  special  directions  on 
these  subjects  be  inserted  in  the  order,  either  by  consent,  or  by 
direction  of  the  court,  the  instructions  to  the  commissioners 
must  be  carefully  corrected  accordingly.  The  signature  of  the 
judge,  and  the  seal  of  the  court  being  then  obtained  to  the 
commission,  to  which  the  interrogatories  on  both  sides  must  be 
annexed  before  it  is  sealed,  such  commission  and  interrogatories 
must  be  forwarded,  either  by  post  or  otherwise,  as  may  be  found 
most  convenient,  to  the  commissioners  named,  who  take  the  de- 
positions of  the  witnesses  in  writing,  and  return  it  according  to 
the  directions.  When  returned,  it  remains  in  the  custody  of 
the  clerk  of  the  court,  who  furnishes  copies  to  the  parties  in  the 
usual  manner ;  or  if,  *by  special  agreement,  it  is  returned  to 
either  of  the  attorneys,  (which  proceeding  is  allowable,)  it  must 
not  be  opened  by  him  unless  in  the  presence  of  the  other,  and 
a  copy  must  be  delivered  to  the  latter  with  all  convenient 
speed.    The  commission  and  depositions,  when  returned  in  the 


590  PRECAUTIONARY  PROCEEDINGS. 

latter  mode,  remain  in  the  custody  of  the  proper  party  until  the 
trial  of  the  cause,  at  which  the  latter  are  read  in  evidence  in 
the  usual  course,  all  just  exceptions  as  to  the  admissibility  of 
testimony  being  then  competent  to  be  taken  by  either  party, 
exactly  as  if  the  witnesses,  whose  depositions  are  read,  were 
present  and  personally  examined.  In  the  event  of  any  irregu- 
larity in  the  execution  of  the  commission,  the  opposite  party 
may  move  at  the  trial  to  suppress  the  deposition  in  toto.  Should 
any  portion  of  them,  on  the  contrary,  be  objectionable  on  the 
ground  of  improper  or  non-responsive  answers  on  the  part  of 
the  witnesses,  of  inadmissibility  of  evidence,  or  otherwise,  the 
motion  will  be  that  such  portion  of  the  deposition  be  not  read. 
On  all  these  different  matters,  the  old  books  of  practice  should, 
as  before  stated,  be  carefully  consulted,  the  foregoing  observa- 
tions being  a  mere  outline  of  the  subject,  and  not  pretending  to 
be  more.  The  plan  laid  down  at  the  outset  has,  however,  been 
slightly  departed  from,  with  regard  to  this  peculiar  proceeding, 
by  the  insertion  of  the  usual  forms,  which  will  be  found  in  the 
Appendix.  It  seems  that  a  second  commission  may  issue,  under 
certain  circumstances,  rendering  that  course  necessary.  See 
Graham's  Practice,  page  596. 

The  following  cases  have  been  decided  since  the  passing  of 
the  Code,  in  reference  to  the  above  proceedings : 

In  Dodge  v.  Rose,  1  C.  E.  123,  the  court  held  that,  on  a  motion 
for  a  commission,  the  moving  papers  must  show  affirmatively 
that  such  motion  was  made  in  a  proper  district;  and,  this  not 
being  the  case,  the  application  was  refused. 

In  Blachmar  v.  Van  fnwager,  5  How.  367,  1  C.  R.  (N.  S.)  80, 
this  conclusion  was  denied ;  and  it  was  held,  on  the  contrary, 
that  there  was  no  rule  of  practice  requiring  the  moving  papers 
to  show  the  place  where  the  trial  was  to  be  had,  and  that,  ac- 
cordingly, an  omission  in  this  respect  constituted  no  irregu- 
larity. 

The  motion  in  that  case  was  made  in  a  county,  adjoining  the 
<li.--tri''t,  but  not  the  county  in  which  the  trial  was  to  be  had, 
and  was  therefore  clearly  irregular  as  a  motion,  under  sec.  401. 
The  opposite  party  had,  however,  taken  no  objection  at  the 
time,  but  had,  on  the  contrary,  considered  and  treated  the  order 
as  a  nullity,  and  had  taken  an  inquest  accordingly,  notwith- 
standing  the  stay  thereby  granted.  The  court  held  that  he  had 
no  light  to  do  s<>,  and  that  the  order  was  not  void,  but  merely 


PRECAUTIONARY  PROCEEDINGS.  591 

irregular,  and,  as  such,  was  binding  until  vacated  or  set  aside; 
and  the  inquest  was  set  aside  accordingly.  If,  however,  the 
motion  had  been  opposed,  and  the  fact  shown  that  it  was  made 
in  a  wrong  county,  the  learned  judge  said  he  would  undoubt- 
edly have  declined  to  hear  it. 

In  The  Bank  of  Charleston  v.  Ilurlbut,  1  Sandf.  717,  1  C.  R. 
96,  it  was  decided  that,  in  analogy  with  the  former  practice,  the 
defendant  will  be  allowed  twenty  days  after  the  service  of  the 
reply,  in  which  to  apply  for  a  commission,  with  the  usual  stay 
of  proceedings. 

If  applied  for  with  due  diligence,  the  commission  issues,  and 
a  stay  will  be  granted,  as  of  course;  and,  if  the  opposite  party 
serve  a  notice  of  trial  subsequent  to  the  notice  of  motion  for 
such  purpose,  the  payment  of  his  costs  of  the  term  will  not  be 
imposed.  If,  on  the  contrar}^,  the  notice  of  motion  be  not  given 
until  after  notice  of  trial  is  served,  the  adversary's  costs  must 
be  offered  to  be  paid  at  the  time,  or  the  whole  expenses  of  pre- 
paring for  trial  will  be  charged  ;  unless  it  appear  that  the  papers 
for  the  motion  have  been  served  without  any  unnecessary  delay, 
in  which  case,  the  moving  party  will  be  excused.  BroJcaw  v. 
Bridgman,  6  How.  114  ;  ICE.  (N.  S.)  407. 

The  last-mentioned  principle  was  acted  upon  in  Foster  v. 
Agassiz,  3  C.  R.  150,  in  which  case,  costs  were  not  imposed,  but 
were  ordered  to  abide  the  event.  The  cause  had  there  been 
noticed  for  trial  seven  days,  and  the  notice  of  motion  given  on 
the  thirteenth  day  after  issue  joined ;  it  being  shown,  moreover, 
on  the  affidavits,  that  due  diligence  had  been  used  in  preparing 
the  papers  for  that  purpose. 

The  above  cases  refer  to  an  application  made  within  the  ordi- 
nary period,  according  to  the  old  practice.  It  by  no  means 
follows,  however,  that,  if  delayed  until  a  later  period,  a  com- 
mission will  not  be  obtainable.  On  the  contrary,  wherever  a 
proper  case  is  shown,  it  will  almost  always  be  granted,  though, 
of  course,  upon  proper  terms. 

The  following  principles  have  been  laid  down  upon  this  sub- 
ject by  the  Superior  Court : 

"  The  issuing  of  a  commission  is  in  the  discretion  of  the  court. 
It  is  usually  done  as  of  course,  with  or  without  a  stay  of  pro- 
ceedings, but  it  is  not  a  matter  of  strict  right.  The  court  must 
be  governed  in  the  exercise  of  its  discretion,  by  what  is  appa- 
rent will  be  the  consequences ;  and,  if  it  is  evident  that  great 


592  PRECAUTIONARY  PROCEEDINGS. 

injustice  will  be  likely  to  ensue  to  the  adverse  party,  it  is  far 
from  being  of  course  to  grant  it.  In  such  a  case,  the  court  will 
either  impose  terms,  so  as  to  preserve  the  rights  of  the  adverse 
party,  or  will  even  refuse  it,  if  no  way  for  their  protection  can 
be  devised."     Ring  v.  Mott,  2  Sandf.  683. 

Under  ordinary  circumstances,  the  stay  of  proceedings,  when 
granted,  is  absolute,  until  the  actual  return  of  the  commission, 
however  long  may  be  the  time  necessary  for  that  purpose.  In 
extreme  cases,  however,  the  court  will  interfere.     Thus : 

"Where  sufficient  time  had  elapsed,  prima  facie,  to  have  ob- 
tained the  return  of  a  commission,  so  issued,  with  a  stay  of  pro- 
ceedings, the  Superior  Court,  in  Voss  v.  Fielden,  2  Sandf.  690, 
laid  down  the  rule  to  be  pursued  in  future,  in  the  following 
terms  :  "  On  considering  the  matter,  we  think  the  rule  ought  to 
be,  that  the  parties,  in  a  case  like  this,  have  liberty  to  go  to  trial 
at  the  next  term.  If  the  commission  be  not  then  returned,  it 
will  be  incumbent  on  the  other  party  to  apply  for  a  further  stay. 
This  will  give  to  the  party,  desirous  -to  go  to  trial,  an  opportu- 
nity to  answer  the  statements  on  which  his  adversary  relies,  for 
continuing  the  stay  of  proceedings,  and  obtaining  further  time 
to  procure  .the  testimony.  Such  will  be  the  practice  in  future, 
where  it  appears  that  sufficient  time,  prima  facie,  has  elapsed  for 
the  execution  and  return  of  the  commission." 

The  questions  as  to  the  due  execution  and  return  of  a  com- 
mission of  the  above  nature,  will  be  found  very  fully  entered 
upon,  and  the  old  authorities  on  the  subject  cited,  in  Fleming  v. 
Hollenbach,  7  Barb.  271,  which  case  should  be  carefully  read, 
in  connection  with  the  works  on  the  former  practice,  in  relation 
to  that  subject. 

The  course  of  procedure,  in  relation  to  the  reading  of  deposi- 
tions so  taken,  on  the  actual  trial,  is  fully  considered  in  Cope  v. 
Sibky,  12  Barb.  521,  where  the  rule  is  laid  down,  that  any  points 
which  may  arise,  as  to  the  admissibility  or  non-admissibility  of 
questions  asked,  or  evidence  taken,  rest  in  the  discretion  of  the 
judge,  as  in  the  case  of  a  witness  examined  vlvd,  voce',  and  the 
case  of  Williama  v.  Eldridge,  1.  Hill,  249,  ruling  to  the  contrary, 
is  disapproved. 

In  tli''  same  case  of  Cope  v.  Silky,  the  interrogatories  had 
been  selllid  by  consent,  and  it  was  also  held,  on  that  ground, 
that  all  objections  to  their  form  were  waived  by  that  mode  of 
proceeding,  notwithstanding  it  had  been  expressly  provided  in 


PRECAUTIONARY  PROCEEDINGS.  593 

the  stipulation  for  that  purpose,  that  it  should  "have  the  same 
effect  as  the  allowance  of  a  judge,  reserving  all  legal  rights." 

In  Morse  v.  Cloyes,  11  Barb.  100,  affirmed  by  the  Court  of 
Appeals,  80th  December,  1853,  where  interrogatories  had  been 
settled,  on  a  stipulation,  which  provided  that  such  settlement 
should  be  without  prejudice  to  any  valid  objections  to  the  com- 
petency of  the  witness,  to  the  admissibilty  of  entries  in  his 
books,  or  to  the  immateriality  of  the  two  first  cross  interroga- 
tories, it  was  held  that,  by  this  form  of  stipulation,  the  parties 
had  waived  all  objections  to  form,  and  that  neither  could  make 
such  an  objection  on  the  trial.  It  was  also  held,  generally,  that 
the  reservation  of  all  competent  objections,  by  the  Eevised  Sta- 
tutes, is  not  applicable  to  a  case,  in  which  the  parties  have  ex- 
pressly stipulated  and  agreed  upon  the  objections  which  are 
reserved,  thus,  by  implication,  waiving  every  other.  The  ques- 
tion of  the  admissibility  or  non-admissibility  of  specific  items 
of  testimony  so  taken,  is  also  very  fully  considered ;  and  the 
case  may  be  advantageously  referred  to. 

It  follows,  of  necessity,  from  the  view  taken  in  the  above 
cases,  that  the  form  of  any  stipulation  to  be  given  on  the  settle- 
ment of  interrogatories,  is  a  matter  of  great  delicacy,  and  requires 
careful  consideration,  and  that,  in  cases  of  importance,  it  may, 
perhaps,  be  more  prudent  to  have  the  interrogatories  settled  by 
a  judge,  in  the  usual  manner,  and  not  otherwise. 

The  issuing  of  a  commission  rests  in  the  discretion  of  the 
court.  Where,  therefore,  the  object  proposed  was  to  obtain 
cumulative  testimony,  on  a  point  as  to  which  there  was  conflict- 
ing evidence,  and  the  cost  of  executing  the  commission  would 
exceed  the  amount  involved  in  the  specific  point  to  which  the 
evidence  was  directed,  the  application  was  refused.  Mitchell  v. 
Montgomery,  8  Sandf.  676. 

In  moving  for  a  commission,  it  is  sufficient,  if  the  materiality 
of  the  testimony  sought  to  be  obtained  is  positively  sworn  to. 
The  applicant  is  not  bound  to  state  what  he  expects  to  prove 
by  the  witness,  whose  testimony  he  seeks  to  procure.  Eaton  v. 
North,  7  Barb.  631,  3  C.  B.  234;  and  see  The  People  v.  Vermil- 
yea,  7  How.  369,  there  cited. 

A  party  to  the  action,  residing  out  of  the  State,  may  be  ex- 
amined on  commission,  at  the  instance  of  the  adverse  party,  in 
the  same  manner.  Brockway  v.  Stanton,  2  Sandf.  640;  1  C. 
R  128. 

38 


594  FORMAL  PREPARATIONS  FOR  TRIAL. 

If  a  commission  be  defectively  executed,  in  matters  of  mere 
form,  the  court  possesses,  and  will  exercise  the  power  of  order- 
ing it  to  be  returned  to  the  commissioners,  to  have  the  defect 
amended,  without  its  being  necessary  to  issue  a  second  commis- 
sion, and  examine  the  witnesses  again. 


CHAPTER     V. 

OF    THE    FORMAL    PREPARATIONS    FOR    TRIAL, 


The  above  precautionary  or  accelerative  proceedings,  with  a 
view  to  the  ultimate  trial  of  the  issue,  when  joined,  having  thus 
been  considered  ;  the  ordinary  measures  for  placing  the  cause 
on  the  calendar,  and  bringing  on  the  trial,  in  due  course,  form 
the  next  subject  for  consideration. 

§  182.  Noticing  and  setting  down  Cause. 

Statutory  Provisions.'] — The  provisions  of  the  Code,  on  the 
subject  of  the  notice  of  trial  and  note  of  issue,  are  contained 
in  sections  256  and  258,  and  run  as  follows : 

§  256.  At  any  time  after  issue,  and  at  least  ten  days  before  the  court, 
either  party  may  give  notice  of  trial.  The  party  giving  the  notice,  shall 
furnish  the  clerk,  at  least  four  days  before  the  court,  with  a  note  of  the 
issue,  containing  the  title  of  the  action,  the  names  of  the  attorneys,  and 
the  time  when  the  last  pleading  was  served  ;  and  the  clerk  shall  there- 
upon enter  the  cause  upon  the  calendar,  according  to  the  date  of  the 
issue. 

§  258.  Either  party  giving  the  notice,  may  bring  the  issue  to  trial, 
and,  in  the  absence  of  the  adverse  party,  unless  the  court,  for  good 
cause,  otherwise  direct,  may  proceed  with  his  case,  and  take  a  dismis- 
sal of  the  complaint,  or  a  verdict  or  judgment,  as  the  case  may  require. 
A  separate  trial,  between  a  plaintiff,  and  any  of  the  several  defendants, 
may  be  allowed  by  the  court,  whenever,  in  its  opinion,  justice  will 
thereby  be  promoted. 

Justice  of  Trial.] — Although  peculiarly  incumbent   upon  tho 


FORMAL  PREPARATIONS  FOR  TRIAL.  595 

plaintiff,  on  whom  rests  the  conduct  of  the  cause,  the  above 
proceedings  will,  in  almost  every  case,  be  equally  necessary  on 
the  part  of  the  defendant.  It  is  true,  that  a  notice  on  the  part 
of  the  plaintiff  will  be  sufficient  to  bring  on  the  cause  in  regu- 
lar course,  and  that,  if  so  brought  on,  the  defendant  will  labor 
under  no  actual  disability  in  respect  to  his  defence ;  still,  on  the 
other  hand,  the  latter,  if  he  omit  to  give  a  counter-notice,  and 
to  put  the  cause  regularly  upon  the  calendar  on  his  own  behalf, 
will  be  without  remedy,  in  case  of  the  plaintiff's  change  of 
intention,  or  neglect  to  appear  when  called.  He  will  stand,  in 
fact,  in  the  disadvantageous  position  of  being  bound  by  his 
adversary's  notice,  without  the  power  of  taking  any  affirmative 
measure  on  his  own  behalf.  The  plaintiff  has,  too,  under  these 
circumstances,  a  positive  power  to  stipulate  under  Eule  20,  from 
which  a  notice  on  the  part  of  the  defendant  will  preclude  him, 
by  the  terms  of  that  rule.  In  no  case,  therefore,  should  this 
precaution  be  omitted  on  the  part  of  the  latter.  When,  how- 
ever, the  defendant  has  given  such  a  notice,  he  must  move  the 
cause  in  its  order  when  called  on.  If  he  omit  to  do  so,  he  can- 
not afterwards  move  for  a  dismissal,  under  Eule  21.  McCarthy 
v.  Hancock,  6  How.  28 ;  1  C.  R.  (N.  S.)  188. 

He  will  equally  be  precluded  in  that  respect,  if  he  consent  to 
any  postponement,  the  effect  of  which  may  be  to  throw  the 
cause  over  the  circuit,  though  not  intended  at  the  time.  Fuller 
v.  Sweet,  9  How.  74. 

The  omission  to  give  such  a  notice  will  not,  however,  deprive 
the  defendant  of  his  right  to  make  an  independent  motion  for 
a  dismissal  of  the  complaint,  on  the  ground  of  its  not  having 
been  set  down  by  the  plaintiff.  He  will  be  entitled  to  do  so, 
on  showing,  by  affidavit,  that  the  cause  was  at  issue  in  time  to 
have  been  noticed,  and  that,  at  the  term  for  which  it  ought  to 
have  been  noticed,  younger  issues  have  been  tried.  He  cannot, 
however,  obtain  an}^  affirmative  relief,  on  a  motion  of  this  de- 
scription, or  otherwise  than  by  bringing  the  cause  on,  on  notice 
by  either  side.  All  he  can  obtain  is,  a  simple  dismissal  of  the 
complaint.  Ray  v.  Thompson,  1  Duer,  636,  8  How.  283  ;  see 
also  heretofore,  under  the  head  of  Motion  to  dismiss  for  want  of 
Prosecution,  and  cases  there  cited. 

Where  the  plaintiff  only  has  noticed  the  cause,  and  omits  to 
bring  it  on,  the  defendant,  if  he  attends  prepared,  is  entitled  to 
the  costs  of  the  circuit.     He  must,  however,  apply  for  them  on 


596  FORMAL  PREPARATIONS  FOR  TRIAL. 

the  first  opportunity  afterwards,  or  his  right  to  enforce  their 
payment  will  be  gone.  The  plaintiff,  on  the  other  hand,  will 
not  be  entitled  to  recover  his,  under  such  circumstances,  though 
he  ultimately  obtain  a  verdict  in  the  action.  Whipple  v.  Wil- 
liams, 4  How.  28. 

The  usual  forms  of  notice  of  trial  of  an  issue  of  fact,  or  of 
argument  of  an  issue  of  law  or  appeal,  before  the  general  or 
special  terms,  which  all  are  subject  to  the  same  general  condi- 
tions as  to  time,  service,  and  otherwise,  will  be  found  in  the 
Appendix.  In  the  Court  of  Appeals,  a  different  period  is  pre- 
scribed, as  see  hereafter. 

Where  notice  of  trial  of  an  issue  of  fact  is  given  by  the  plain- 
tiff, and  no  affidavit  of  merits  has  been  served  on  the  part  of 
the  defendant,  (as  to  which,  see  subsequent  portion  of  the  chap- 
ter,) it  is  necessary  that  the  intention  to  take  an  inquest  should 
be  expressed  upon  the  face  of  that  notice.  If  omitted,  it  can- 
not be  taken.  See  Eule  12  of  Supreme  Court.  Where  such 
affidavit  has  been  served,  or  where  the  notice  is  on  the  part  of 
the  defendant,  the  correct  practitioner  will  strike  these  words 
out  of  the  ordinary  form,  though  the  omission  to  do  this  will 
not  vitiate  the  notice,  and  usually  happens. 

If  the  plaintiff  notice  the  cause  for  trial,  and  put  it  on  the  cal- 
endar in  the  ordinary  form,  he  is  bound  to  bring  it  on  for  trial 
when  it  is  reached,  or  he  will  be  liable  to  a  motion  for  dismis- 
sal on .  the  ground  of  want  of  due  prosecution.  Bishop  v. 
Morgan,  1  C.  B.  (N.  S.)  340. 

The  provisions  of  the  Code  on  this  subject  extend  to  the  case 
of  a  trial  by  referees,  on  which,  it  is  competent  for  both  parties 
to  give  notice  in  the  ordinary  form,  and  for  the  defendant  to 
proceed  upon  his  notice,  by  default,  and  take  a  report  in  his 
favor,  in  the  event  of  the  plaintiff's  omission  to  proceed ;  and 
such  will  be  his  proper  course.  Williams  v.  Sage,  1  C.  E.  (N.  S.) 
358;  Thompson  v.  Krider,  8  IIow.  248.  See  also  hereafter 
under  the  head  of  Trial  by  Referees. 

It  is,  of  course,  iiicuinboiit  upon  the  plaintiff  to  serve  notice 
upon  every  defendant,  as,  otherwise,  he  cannot  bring  on  the 
cause,  as  against  those  with  respect  to  whom  he  has  omitted  to 
do  bo.  CJnder  ordinary  circumstances,  it  will  not  be  necessary 
foi  a  defendant  to  serve  co-defendants.  Where,  however,  in  his 
answer,  he  seeks  relief  aa  against  them,  it  might  be  prudent.  Sec- 
tion 258  gives  bim  power  to  take  "a  dismissal  of  the  complaint, 


FORMAL  PREPARATIONS  FOR  TRIAL.  597 

or  a  verdict  or  judgment,  as  the  case  may  require ;"  and,  of 
course,  he  cannot  obtain  affirmative  relief,  as  against  any  party 
who  has  not  been  duly  cited  to  appear.  Cases  of  this  descrip- 
tion are, however,  not  likely  to  be  frequent;  and  it  may  be  well 
doubted  whether,  even  after  notice  so  given,  he  could,  in  the 
event  of  a  general  default,  do  more  than  take  a  dismissal  of  the 
complaint  as  against  the  plaintiff.  If  the  cause  come  on  in  due 
course,  and  all  parties  are  heard,  there  is  no  question  but  that 
the  court  then  possesses  the  power  of  passing  upon  the  mutual 
claims  of  all  parties;  but  the  defendant's  power  to  obtain  affirm- 
ative relief,  by  default,  as  against  parties  other  than  the  plain- 
tiff, seems  questionable.  There  is  no  reported  case  upon  the 
point,  but  the  more  consistent  view  seems  to  be,  that,  on  the 
plaintiff's  default,  the  whole  case  falls  to  the  ground,  and  is  out 
of  court ;  and  that,  if  wished  for,  affirmative  relief,  as  against 
other  parties,  can  only  be  obtained  by  a  party  in  that  position, 
in  the  ordinary  mode,  by  means  of  an  affirmative  proceeding. 
Allegations  of  equities  between  co-defendants,  when  standing 
alone,  form  no  defence,  as  against  the  plaintiff's  right  to  reco- 
ver. See  Woodworth  v.  Bellows,  4  How.  24 ;  1  C.  E.  129  ;  and 
the  converse  of  this  proposition,  %.  c,  that,  if  the  plaintiff  aban- 
don his  case,  the  whole  proceeding  becomes  inoperative,  and  a 
dismissal  of  the  complaint  the  only  proper  course,  would  seem 
to  be  equally  sound.  The  experiment  appears,  however,  to  be 
open  for  trial,  if  thought  expedient. 

With  reference  to  the  time  prescribed  by  section  256,  in 
Boston  v.  Chamberlin,  3  How.  412,  it  was  held,  that  the  lan- 
guage of  this  section  is  governed  by  that  of  section  407,  and, 
therefore,  that  the  day  of  service  of  a  notice  of  trial  is  excluded 
from,  and  the  first  day  of  term  included  in  the  computation  of 
the  ten  days  required  under  the  former.  The  same  point  was 
decided,  and  a  notice  served  on  the  11th  for  the  21st  held  good, 
in  Dayton  v.  Mclntyre,  5  How.  117  ;  3  C.  E.  164.  Where  ser- 
vice by  mail  is  admissible,  the  above  time  is,  of  course,  double, 
and  a  twenty  days'  notice,  instead  of  ten,  must  be  given.  See 
Dor-Ion  v.  Leivis,  7  How.  132. 

The  notice  should  be  for  the  first  day  of  the  term  or  circuit, 
on  the  calendar  for  which  the  cause  is  placed.  In  the  Court  of 
Common  Pleas  this  is  the  subject  of  a  special  order,  No.  5  of 
orders  of  1848,  but  in  all  the  others  it  is  equally  necessary. 

By  giving  notice  of  trial,  the  party  admits  that  the  pleadings 


598  FORMAL  PREPARATIONS  FOR  TRIAL. 

are  sufficient  to  raise  an  issue,  and  cannot  afterwards  move, 
under  sec.  160,  to  strike  out  redundant  matter.  Esmond  v.  Van 
Bemchoten,  5  How.  44.  The  plaintiff  may  give  notice  of  trial, 
&c,  immediately  on  the  service  of  the  reply,  though,  of  course, 
at  his  peril,  if  the  defendant  subsequently  amend  under  section 
172.  The  cause  is  then  properly  at  issue,  notwithstanding  the 
defendant's  right  to  do  so.  The  former  is  not,  however,  obliged 
to  bring  the  cause  on,  until  the  expiration  of  a  reasonable  time 
after  the  time  to  amend  has  elapsed,  unless  the  defendant  waive 
his  right  to  amend,  by  giving  notice  of  trial,  or  that  he  shall 
not  avail  himself  of  that  right.  If  the  defendant  so  waive  his 
right,  the  plaintiff  is  then,  apparently,  bound  to  go  on ;  Cusson 
v.  Whalon,  5  How.  302,  1  C.  R.  (N.  S.)  27 ;  and  it  would  seem 
that  ten  days  after  the  time  to  amend  has  expired,  is  a  reason- 
able time  to  prepare  for  trial.  In  cases  where  service  by  mail 
is  allowable,  the  defendant  has  forty  days  to  amend,  and  the 
plaintiff  will  not  be  in  default,  till  after  that  time  has  elapsed. 
The  provisions  of  sec.  172,  allowing  twenty  days  for  that  pur- 
pose, do  not  limit  the  period  absolutely,  without  reference  to 
sect.  412.     Same  case. 

Although,  if  either  party  amend  in  good  faith,  his  right  to  do 
so  is  absolute,  an  amendment  is  inadmissible,  if  clearly  made 
for  purposes  of  delay.  In  Allen  v.  Compton,  8  How.  251,  an 
amended  answer,  so  served,  the  effect  of  which  was  to  throw 
the  cause  over  the  circuit,  was  held  to  be  a  nullity,  and  the 
plaintiff's  motion  to  strike  it  out  was  granted. 

An  offer,  too,  cannot  be  served  so  late  as  to  have  that  effect, 
as  regards  the  plaintiff's  proceedings.  Where  such  is  the  case, 
and  the  cause  is  reached,  within  the  ten  days  allowed  the 
plaintiff  to  elect,  the  latter  will  be  entitled  to  proceed,  as  if 
none  had  been  made.     Pomroy  v.  j/ulin,  7  How.  161. 

An  offer  of  that  nature  will,  however,  preclude  the  defendant 
from  taking  any  steps  on  his  own  behalf,  within  that  period. 
The  plaint  iff  is  entitled  to  the  full  period,  allowed  him  to  make 
his  election  in  writing,  nor  will  a  parol  declaration  on  his  part 
avail  to  deprive  him  of  that  right.  Walker  v.  Johnson,  8 
How.  240. 

An  appeal  from  an  order,  striking  out  a  portion  of  the  de- 
fendant's  answer,  ell'rc.is  ;i  complete  stay  of  proceedings,  until  it 
is  decided,  and  the  plaintiff  cannot  proceed  to  try  the  cause  on 
the  remaining  issues,  pending  that  appeal.  The  Trustees  of 
Penn  Tan  v.  Forbes,  8  How.  285. 


FORMAL  PREPARATIONS  FOR  TRIAL.  599 

The  notice  of  trial  is,  in  a  great  measure,  the  same  as  that 
under  the  old  practice,  and  is  generally  subject  to  the  same  in- 
cidents. If  insufficient,  of  course,  no  proceeding  grounded  on 
it  will  be  valid.  If  one  party  only  have  given  a  notice,  he  may 
countermand  it,  but,  if  the  opposite  party  have  already  incur- 
red costs  in  consequence,  he  must  pay  them.  The  party  entitled 
to  receive  those  costs  should,  however,  apply  for  them  the  first 
opportunity,  or  his  right  may  be  lost.  See  Whipple  v.  Williams  i 
before  cited. 

The  notice  of  trial  must  be  served  upon  the  opposite  attor- 
neys, in  the  usual  manner,  (see  chapter  as  to  interlocutory  and 
formal  proceedings,)  and  the  party  doing  so,  must  be  prepared 
with  proof  of  that  service,  in  the  event  of  the  cause  being 
called  on,  as,  otherwise,  be  cannot  take  any  step  grounded  there- 
on. The  ordinary  course,  is  to  obtain  the  signature  of  the 
opposite  attorney,  to  an  admission  endorsed  on  the  notice  itself. 
Where  this  is  impracticable,  the  usual  affidavit  of  service 
should  be  made,  and  may  be  endorsed  on  that  notice,  or  an- 
nexed to  it,  as  may  be  most  convenient.  If  the  service  be  by 
mail,  an  affidavit  of  the  posting,  and  payment  of  the  postage, 
will  be  the  proper  form. 

Note  of  Issue.'] — The  form  of  the  note  of  issue  is  so  clearly 
prescribed  by  sec.  256,  that  it  would  be  unnecessary  to  give  one 
in  the  Appendix.  Four  days  prior  to  the  commencement  of  the 
term  is  now  the  legal  period  in  all  cases,  and  with  reference  to 
every  description  of  issue.  See  Rule  34.  Prior  to  the  last 
revision,  the  Rules  presented  an  anomaly,  in  requiring  notes 
of  issue  for  the  general  term,  to  be  filed  eight  and  not  four  days 
previous,  but  that  anomaly  is  now  corrected. 

The  following  special  provisions  have  been  made  by  the  New 
York  local  tribunals  in  this  respect.  In  the  Common  Pleas  it  is 
provided,  by  Rule  7  of  June,  1848,  that,  where  the  parties  have 
agreed  in  writing  to  waive  a  trial  by  jury,  such  consent  ought 
to  be  stated  on  the  note  of  issue,  and  the  consent  filed  with  it. 
In  the  Superior  Court  a  distinction  is  made  between  the  special 
and  trial  terms.  See  Rules  3  and  4  of  that  court  of  18th  January, 
1851.  Temporary  rules  have  from  time  to  time  been  made  by 
the  latter  tribunal,  to  the  effect  that,  whenever  a  cause  has  been 
already  on  the  calendar,  the  note  of  issue  must  state  that  fact, 
and  its  number  on  the  last  previous  calendar,  or  it  will  be  dis- 


600  FORMAL  PREPARATIONS  FOR  TRIAL. 

regarded,  and  the  cause  lose  its  place.  Of  late,  however,  this 
rale  has  been  abandoned. 

Another  practice  has  sprung  up  in  the  New  York  courts,  i.  e., 
that  of  requiring  notes  of  issue  for  the  circuit  or  trial  terms,  to 
be  filed  at  an  earlier  period  than  that  prescribed  by  the  Code, 
and,  generally,  nine  days  before  the  commencement  of  the  term. 
This  practice  is  no  doubt  highly  convenient,  if  not  necessary, 
in  view  of  the  crowded  state  of  the  calendar  in  that  district, 
and  it  is  accordingly  generally  and  cheerfully  assented  to.  Its 
legality,  however,  seems  questionable,  in  view  of  the  positive 
provisions  both  of  the  Code,  and  of  the  Rules,  upon  the  subject. 
It,  in  effect,  repeals  those  provisions,  pro  tanto  ;  and  whether  any 
judge  or  any  court  can  do  so  as  a  matter  of  right,  seems  more 
than  doubtful. 

The  nature  of  the  issue,  whether  of  law  or  fact,  should  be 
stated  on  the  face  of  the  note,  and  a  notice,  in  the  former  case, 
as  to  whether  it  arises  on  appeal  or  demurrer,  would  be  a  con- 
venient addition.  It  should  also  be  stated  whether  it  is  filed 
by  the  plaintiff  or  the  defendant,  though  this  is  not  an  absolute 
essential.  (In  the  Court  of  Appeals  a  different  practice  prevails, 
as  will  be  noticed  hereafter.)  "When  it  is  forwarded  to  the 
clerk  of  the  court  by  post,  it  must  be  sent  in  sufficient  time,  so 
that  he  may  receive  it  on  or  before  the  last  day  appointed. 
If  not,  the  cause  will  not,  of  course,  be  on  the  calendar. 

It  seems  prudent,  as  a  general  practice,  to  file  a  cross  note  of 
issue  on  the  part  of  the  defendant,  although,  if  the  plaintiff 
place  the  cause  on  the  calendar,  the  precaution  will  be  super- 
fluous, at  least  so  far  as  bringing  it  on  in  its  order  is  concerned. 
In  Browning  v.  Page,  7  How.  487,  a  dismissal  taken  by  de- 
fendants, where  the  cause,  though  noticed,  had  not  been 
regularly  placed  on  the  calendar,  was  held  to  be  irregular,  and 
set  aside. 

The  proper  date  of  an  issue  of  law  or  fact,  is  that  of  the  ser- 
vice of  tin;  last  pleading,  demurrer,  answer,  or  reply,  as  the  case 
may  I"-;  <>r,  where  Buoh  pleading  has  been  amended,  then,  of 
tin:  amended  pleading.  Where  two  independent  issues,  one  of 
law,  and  the  other  of  fact,  are  raised  in  (ho  same  case,  the  date 
of  the 'former  will  be  that  of  tin;  service  of  the  demurrer;  of  the 
latter,  that  of  the  answer  or  reply,  according  to  circumstances. 
Before  the  la  t  revision  of  the  Rules,  the  practice,  astothedate 
of  issues  for  the  general   term,  was,  in  some   respects,  uncertain. 


FORMAL  PREPARATIONS  FOR  TRIAL.  601 

See  Gould  v.  Chapin,  5  How.  358;  9  L.  O.  187;  1  C.  E.  (N.  S.) 
74.  By  Kule  34,  as  it  now  stands,  they  are  definitively  fixed, 
as  under: 

The  clerk  shall  prepare  a  calendar  for  the  general  term,  and  cause 
the  same  to  be  printed  for  each  of  the  judges  holding  the  court. 
Appeals  shall  be  placed  on  the  calendar,  according  to  the  date  of  the 
service  of  the  notice  of  appeal ;  and  other  cases,  as  of  the  time  when  the 
question  to  be  reviewed  arose. 

The  necessity  of  the  above  proceedings  being  taken  in  due 
time,  and  the  expediency  of  their  not  being  ]3ut  off  till  the  last 
moment,  is  evidenced  by  the  case  of  Wilkin  v.  Pearce,  4  How. 
26.  In  that  case,  the  sudden  and  violent  illness  of  an  attorney, 
who  had  waited  until  the  last  moment  to  take  these  steps,  was 
decided  to  be  an  insufficient  excuse  for  the  omission,  and  the 
cause  was  refused  to  be  placed  upon  the  calendar.  The  decision 
is  one  of  the  .Court  of  Appeals,  the  rules  of  which  are,  as  before 
stated,  somewhat  different,  but  the  principles  are  of  general 
application. 

According  to  the  Code,  and  the  general  spirit  of  the  Kales,  the 
filing  of  the  note  of  issue  ought,  perhaps,  to  be  repeated  every 
term  that  the  cause  is  on  the  calendar,  until  it  is  finally  disposed 
of.  In  the  Supreme  Court,  however,  in  the  First  District,  and 
in  the  New  York  Common  Pleas,  this  is  dispensed  with,  and, 
the  note  of  issue  once  filed,  the  cause  takes  its  place  on  the 
general  calendar,  and  there  remains,  until  heard  in  due  course, 
without  any  necessity  for  a  repetition  of  the  proceeding.  This 
very  convenient  arrangement  has  been  partially  adopted  by 
the  Superior  Court,  which  issues  special  rules,  from  time  to 
time,  for  the  consolidation  of  a  certain  number  of  terms,  gene- 
rally three  at  one  time.  A  cause,  once  placed  on  the  calendar, 
remains  there,  without  farther  proceeding,  until  called.  Once 
called  and  passed,  however,  a  fresh  note  of  issue  will  be  requi- 
site for  the  succeeding  term,  and  the  cause  will  lose  its  original 
precedence.  In  all  the  other  courts  throughout  the  State,  in 
which  no  special  provision  is  made  on  the  subject,  the  note  of 
issue  must  be  repeated  every  term,  until  the  cause  is  regularly 
called  on. 

Although  the  repetition  of  the  note  of  issue  is,  in  most  cases, 
dispensed  with,  as  above,  a  fresh  notice  of  trial  must,  on  the 
contrary,  be  given  everv  term,  in  which  the  cause  is  on  the 


602  FORMAL  PREPARATIONS  FOR  TRIAL. 

calendar,  unless  such  notice  be  dispensed  with  by  special  order, 
as  is  now  habitually  done  by  the  Superior  Court,  in  the  in- 
stances above  alluded  to.  This  course,  however,  has  not  been 
adopted  by  the  other  tribunals,  and,  as  a  general  rule,  the  cause 
must  be  re-noticed  every  term;  and,  wherever  there  is  the 
slightest  doubt  upon  the  subject,  it  would  not  be  wise  to  omit 
the  precaution.  The  parties  are  compensated  for  this  extra 
trouble,  hy  the  term  fee  allowed  under  subdivision  8  of  sec.  307. 
The  terms  held  by  the  different  courts,  will  be  found  in  their 
rules  for  the  time  being,  and  in  the  appointment  of  circuits,  &c., 
of  the  Supreme  Court,  as  published  every  two  years,  by  author- 
ity.    (See  list  subjoined  at  the  end  of  the  volume.) 

All  issues,  whether  of  law  or  of  fact,  must  now  be  noticed 
for  the  special  or  trial  terms,  or  circuit,  in  the  first  instance. 
See  Code,  s.  255.  Under  the  amendments  of  1851,  the  case 
was  different;  and  an  issue  of  law  was  originally  cognizable  by 
the  general  term,  and  not  by  the  single  judge,  unless  the  court 
should  otherwise  direct.  This,  however,  as  a  general  rule,  was 
done.  See  rule  of  the  Superior  Court  on  this  subject,  reported, 
4  Sandf.  725.  This  anomaly  is  now  remedied,  and,  by  the  last 
amendment,  all  original  issues  are  placed  upon  the  same  footing, 
the  general  term  taking  exclusive  cognizance  of  appellate  pro- 
ceedings, and  of  them  alone. 

§  183.    Affidavit  of  Merits. 

The  next  proceeding  to  be  noticed  is  one  exclusively  appli- 
cable to  the  defendant,  i.  e.,  the  filing  and  service  of  the  usual 
affidavit  of  merits,  in  order  to  prevent  the  plaintiff  from  taking 
an  inquest.  This  is,  in  a  great  measure,  a  proceeding  under 
the  old  practice.  It  was  specially  provided  for  by  No.  92,  and 
is  also  referred  to  in  Nos.  86  and  31  of  the  Supreme  Court 
Common  Law  Kulcs  of  1817.  By  Rule  36  of  those  now  in 
operation,  it  is  prescribed  that,  "in  addition  to  what  has  usually 
been  inserted,"  (sec  Rule  92,  of  1847,  above  referred  to,)  "the 
party  shall  swear  that  he  has  fully  and  fairly  stated  the  case  to 
his  counsel,  and  shall  give  the  name  and  place  of  residence  of 
such  counsel."  The  usual  form  will  be  found  in  the  Appendix, 
and  should  be  complied  with  to  the  letter;  the  courts  being 
extremely  strict  upon  the  subject.  Should  further  information 
be  required,  the  old  books  of  practice  may  be  referred  to. 


FORMAL  PREPARATIONS  FOR  TRIAL.  603 

The  original  affidavit  of  merits  must  be  filed  with  the  clerk 
of  the  court  in  which  the  action  is  pending,  on  the  first  day  of 
the  term  for  which  such  action  has  been  noticed,  at  the  very 
latest ;  and  a  copy  of  it,  with  a  notice  of  the  filing  of  the  origi- 
nal endorsed,  must  be  also  served  upon  the  plaintiff's  attorney, 
so  as  to  be  received  by  him  before  the  inquest  is  actually  taken. 
If  either  be  omitted,  the  latter  will  be  in  a  situation  to  take  an 
inquest,  at  the  opening  of  the  court  on  the  succeeding  morning, 
or  on  any  day  after  such  first  day,  provided  his  notice  of  trial 
has  been  framed  accordingly.  See  Kule  12  of  present  Rules. 
It  would,  however,  be  improvident  to  wait  till  so  late  a  period 
as  that  above  mentioned,  before  taking  this  necessary  measure. 
The  more  usual  and  advisable  course  is  to  make  and  serve  such 
affidavit  at  an  early  period  after  issue  has  been  joined. 

Where  practicable,  such  affidavit  should  always  be  made  by 
the  party  himself;  but,  if  he  be  unable  to  do  so,  his  attorney 
or  counsel  may  make  it,  a  sufficient  excuse  being  shown  on  its 
face.  See  Rule  92  of  1847,  before  referred  to.  The  affidavit 
must  be  unqualified,  as  to  the  existence  of  a  defence  on  the 
merits,  and  the  advice  on  the  case  sworn  to  must  be  the  advice 
of  counsel,  and  not  merely  of  an  attorney,  or  it  will  be  insuffi- 
cient. Once  made,  filed,  and  served,  such  affidavit  is  available 
to  prevent  an  inquest  at  any  future  time,  until  the  cause  has 
been  finally  disposed  of.  It  should  be  made  and  filed  sepa- 
rately, and  not  incorporated  with  other  proceedings  in  the  case. 
The  affidavit  of  one  of  several  defendants,  having  a  joint  de- 
fence, would  seem  to  be  sufficient  to  prevent  an  inquest,  as 
against  all ;  otherwise,  however,  if  the  defences  be  several. 

By  Rule  92  of  18-17,  before  referred  to,  an  affidavit  of  merits 
is  made  necessary,  in  actions  "  upon  any  written  instrument  or 
record,  which  shall  be  described  in,  or  a  copy  of  which  shall  be 
served  with  the  declaration ;"  and  the  form  of  the  affidavit  was 
there  prescribed  to  be  as  follows — i.  «.,  that  the  party  making  it 
had  stated  the  case  to  his  counsel,  and  that  he  had  a  "  good  and 
substantial  defence  upon  the  merits,  to  the  plaintiff's  demand, 
on  the  bill  of  exchange,  promissory  note,  or  other  written  in- 
strument, or  the  judgment,  recognizance,  or  other  record,  on 
which  the  action  is  brought,  as  he  is  advised  by  his  said  coun- 
sel, and  verily  believes  to  be  true."  It  may,  therefore,  be  fairly 
argued,  that,  in  those  cases  in  which  the  action  is  not  founded 
upon  a  written  instrument  or  record,  such  affidavit  is  not  neces- 


604  FORMAL  PREPARATIONS  FOR  TRIAL. 

sary  at  all,  and  an  inquest  cannot  be  taken.  Where,  however, 
there  exists  any,  even  the  slightest  doubt  upon  the  subject,  so 
obvious,  and,  at  the  same  time,  so  easy  a  precaution  should 
never  be  omitted. 

Although  provided  for  by  the  recent  rules,  the  Code  is  silent 
upon  the  subject  of  the  affidavit  of  merits,  or  of  the  inquest  to 
be  taken  -where  none  has  been  served.  It  was  at  first  con- 
tended that  a  verified  answer,  under  the  Code,  was  sufficient  to 
prevent  an  inquest;  but  it  was  speedily  settled  that  such  was 
not  the  case,  and  that  the  former  practice  upon  the  subject  re- 
mained unaltered.  See  Anderson  v.  Hough,  1  Sandf.  721 ;  6  L. 
O.  365 ;  1  C.  E.  50 ;  Sheldon  v.  Martin,  1  C.  E.  81 ;  Jones  v. 
Russell,  3  How.  324 ;  ICE.  113  ;  Dickinson  v.  Kimball,  1  C.  E. 
83  ;  Hunt  v.  Mails,  1  C.  E.  118. 

The  strictest  compliance  with  the  letter  of  the  rules  above 
cited,  is  enforced  in  all  the  decided  cases.  Thus,  in  Richards 
v.  Swetzer,  3  How.  413,  1  C.  E.  117,  an  affidavit  that  the  defend- 
ant had  stated  to  counsel  the  facts  "of  his  defence,''''  instead  of 
"the  case,"  or  "the  facts  of  the  case,"  was  held  to  be  defect- 
ive. "It  may  be,"  the  learned  judge  goes  on  to  say,  "  that  there 
was  a  complete  and  perfect  answer  to  his  defence,  of  which 
counsel  was  not  aware." 

An  affidavit  by  the  defendant,  of  "a  defence  in  the  action," 
and  asserting  that  the  answers  were  put  in  in  good  faith,  and 
not  for  delay,  has,  likewise,  been  held  to  be  insufficient.  The 
defendant  had  not  sworn  to  the  advice  of  counsel,  nor  to  a  de- 
fence on  the  merits.     McMurray  v.  Gifford,  5  How.  14. 

An  affidavit  that  the  party  had  stated  to  counsel  "the  facts 
of  this  case,"  though  not  in  strict  verbal  compliance  with  Eule 
39— which  requires  a  statement  of  "the  case" — was  sustained 
in  Jordan  v.  Garrison,  ♦'>  How.  6,  1  C.  E.  (N.  S.)  400,  in  accord- 
ance with  the  reference  in  Richards  v.  Swetzer,  above  cited,  to 
those  two  expressions,  as  importing  the  same  thing.  Had  the 
statement  been  of  the  facts  of  "his"  case,  it  would,  doubtless, 
have  been  beld  bad. 

An  affidavit,  that  the  defendant  had  stated  "his  case  in  the 
cause,"  was  decided  to  be  Insufficient,  as  importing  merely  a 
statement  of  his  defence,  in  Etta  v.  Jones,  6  How.  296. 

In  common  law  actions,  the  affidavit  of  merits  need  not,  in 
ordinary  cases,  be  special,  as  was  required  in  chancery  under 
tie'  old  practice.    Where,  however,  the  defence  is  attended  with 


FORMAL  PREPARATIONS   FOR  TRIAL.  605 

suspicious  circumstances,  the  court  may  require  the  facts  to  be 
stated.  Dix  v.  Palmer,  5  How.  233;  3  C.  E.  214;  Van  Home  v. 
Montgomery,  5  How.  238.  In  the  reports  of  these  cases,  it  is 
said  that  several  decisions  had  been  cited,  which  held  that  the 
affidavit  of  merits,  under  the  Code,  should  be  special.  None, 
however,  appear  upon  the  reports,  and  it  seems  difficult  to  con- 
jecture on  what  ground  this  could  have  been  held. 

In  cases  where  a  demurrer  is  put  in,  an  affidavit  of  merits 
may  possibly  be  necessary.  See  Appleby  v.  Elhins,  2  Sandf. 
673,  2  C.  R.  80,  where  leave  to  answer  was  refused,  on  judg- 
ment being  given  on  a  frivolous  demurrer,  on  the  ground  that 
there  was  no  affidavit  of  merits. 

Where  the  only  defence  put  in  by  the  defendant  consists  of 
a  partial  set-off,  and  the  plaintiff  omits  to  reply  to  that  defence, 
an  affidavit  of  merits  will  be  superfluous.  The  plaintiff,  under 
these  circumstances,  must  allow  that  set-off,  in  the  inquest  to  be 
taken  by  him ;  and,  if  he  omit  to  do  so,  that  inquest  will  be 
set  aside.    Potter  v.  Smith,  9  How.  262. 


§  184.    Preparations  for  Trial. 

General  Remarks.'] — The  cause  having  thus  been  regularly 
put  on  the  calendar,  and  noticed  by  either  or  both  of  the  par- 
ties, and  the  necessary  measures,  in  order  to  prevent  an  inquest, 
having  been  taken  on  behalf  of  the  defendants,  it  remains  to 
notice,  shortly,  the  preparations  for  the  trial  itself. 

Enforcing  attendance  of  Witnesses,  ordinary  Subpoena.'] — On  an 
issue  of  law,  or  an  appeal,  no  witnesses,  of  course,  are  neces- 
sary. The  proceedings  for  enforcing  the  attendance  of  those 
required  upon  the  trial  of  an  issue  of  fact,  are  identically  the 
same  as  under  the  old  »practice ;  and,  therefore,  under  the  gene- 
ral plan  of  the  work,  they  will  not  be  here  entered  upon  in 
detail.  The  statute  law  on  the  subject  of  witnesses,  their  privi- 
leges, compelling  their  attendance,  &c,  will  be  found  in  art. 
VI.,  title  III.,  chap.  VII.,  part  III.  of  the  Eevised  Statutes,  2 
R.  S.  400  to  403 ;  and  the  power  of  courts  of  record  to  issue 
subpoenas,  at  2  R.  S.  276.  The  punishment  for  refusal  or  neg- 
lect to  obey  such  subpoena,  by  process  of  contempt,  is  pre- 
scribed in  title  XIII.  of  chap.  VIII.,  part  III.  of  the  same 


606  FORMAL  PREPARATIONS  FOR  TRIAL 

statutes,  2  R  S.  534  to  541 ;  the  witness  being  also  punishable 
by  fine  and  imprisonment,  under  the  article  first  referred  to. 
The  proceedings  for  obtaining  the  testimony  of  a  party  in 
prison,  by  means  of  a  habeas  corpus  ad  testificandum ,  will  be 
found  in  the  first  five  sections  of  art.  I.,  title  I.,  chap.  IX.  of 
part  III,  2  R.  S.  559. 

The  mode  of  service  of  subpoena,  is,  by  delivering  a  copy  of 
it,  or  a  ticket  containing  its  substance,  to  the  witness,  showing 
him  at  the  same  time  the  original  writ,  under  the  seal  of  the 
court  issuing  the  same.  Both  subpoena  and  ticket  are  ordinary 
forms,  to  be  procured  at  any  legal  stationer's.  The  fees  allowed 
by  law  to  such  witness,  for  travelling  to  and  returning  from  the 
place  where  he  is  required  to  attend,  and  the  fees  allowed  for 
one  day's  attendance,  must  be  paid,  or  tendered  to  such  witness 
at  the  time  of  service,  or  his  attendance  cannot  be  enforced. 
See  2  R  S.  401,  sec.  52.  Those  fees  will  be  found  at  2  R  S. 
643,  sec.  49.  They  consist  of  travelling  fees,  at  the  rate  of  four 
cents  per  mile,  going  and  returning,  if  the  witness  resides  more 
than  three  miles  from  the  place  of  attendance.  "Within  that 
distance,  he  is  only  allowed  the  fee  for  his  attendance,  which  is 
fifty  cents  for  each  day  during  which  he  is  engaged.  One  day's 
fee  must,  as  before  observed,  be  paid  to  him,  at  the  time  of  the 
service  of  the  subpoena.  For  further  particulars,  if  required, 
see  the  books  on  the  former  practice.  Under  the  Code,  the 
evidence  of  the  adverse  party  is  obtainable,  in  the  same  way  as 
that  of  an  ordinary  witness,  and  may  be  compelled  in  the  same 
manner — sec.  390.  He  must  be  served  with  a  subpoena,  and 
his  expenses  tendered  or  paid,  precisely  as  if  he  were  an  ordi- 
nary witness. 

The  subpoena,  when  issued,  must  be  legally  served.  If  force 
be  used  in  an  attempt  to  serve  one,  the  party  using  it  will  be 
responsible,  and  will  not  be  in  any  wise  protected,  by  the  pro- 
cess being  in  his  hands.    Ilager  v.  Danforth,  8  How.  435. 


Documentary  Evidence. 

Subpoena  duces  Tecum.'] — Iii  cases  where  documents  are  in  the 
hands  of  any  person,  :uid  arc  required  to  be  produced  on  the 
trial,  the  usual  form  of  subposna  duces  tecum  should  be  used,  and 
the  documents  required  to  be  produced,  should  be  distinctly  and 


FORMAL  PREPARATIONS  FOR  TRIAL.  607 

clearly  stated  on  its  face,  so  as  to  avoid  the  possibility  of  any 
mistake  occurring.  Forms  are  similarly  obtainable,  and  this  pro- 
cess must  be  served  in  the  same  way  as  the  ordinary  subpoena. 
A  party  compelling  the  production  of  books  upon  the  trial, 
must  remember  that,  by  so  doing,  he  makes  them  evidence 
for  both  sides.     See  Low  v.  Payne,  4  Comst.  247. 

If  a  witness  served  with  this  form  of  subpoena,  neglect  to  pro- 
duce the  documents  required,  he  is  liable  for  all  damages  sus- 
tained by  that  neglect,  nor  will  his  mere  appearance  to  give 
evidence  protect  him.  And,  in  an  action  for  that  purpose,  the 
plaintiff  will  not  be  required  to  prove  that  he  had  a  good  cause 
of  action.  The  mere  fact  that  he  was  nonsuited  for  want  of  the 
production  of  the  papers,  will  be  sufficient.  Lane  v.  Cole,  12 
Barb.  680.     See  likewise  Bonesteel  v.  Lynde,  below  cited. 

In  Trotter  v.  Latson,  7  How.  261,  it  was  considered  that  a 
party  to  the  action,  when  examined,  was  not  compellable  to 
produce  his  books  and  papers,  under  a  subpoena  duces  tecum, 
but  that  an  application,  in  the  nature  of  a  motion  for  discovery, 
was  the  proper  course  to  pursue.  In  Bonesteel  v.  Lynde,  how- 
ever, 8  How.  226 — affirmed  on  appeal,  8  How.  352 — this  propo- 
sition is  combated  with  great  force,  and  with  full  detail,  and  the 
contrary  conclusion  is  come  to  ;  and  this  view  is  supported  by 
Stalker  v.  Gaunt,  12  L.  0.  124,  in  which  it  is  stated,  that  such 
is  thereafter  to  be  regarded  as  the  settled  practice  of  the  Superior 
Court ;  and  there  seems  no  doubt  but  that,  in  the  other  tribunals 
also,  the  decisions  last  cited  will  henceforth  be  the  controlling 
authority.  See  likewise  Wiggins  v.  Bishop,  12  L.  0.  127 ;  Stalker 
v.  Gaunt,  12  L.  0. 132,  and  Jarvis  v.  Clerk,  12  L.  0. 129;  in  which 
last  case,  and  also  indirectly  in  Stalker  v.  Gaunt,  it  is  maintained 
that  the  obligations  of  the  party  in  this  respect,  extend  equally 
to  those  cases  where  he  is  examined  under  sec.  390  of  the 
Code,  as  where  that  examination  takes  place  on  the  actual  trial. 
A  party  is  therefore  liable,  and  compellable  under  a  subpoena  of 
this  description,  precisely  as  a  stranger  witness,  and  is  similarly 
punishable,  if  he  disobey  the  direction  for  that  purpose.  His 
rights  to  object  to  the  inspection  or  the  reading  of  those  papers 
as  evidence,  when  actually  produced,  remain,  however,  intact, 
and  are  in  no  wise  prejudiced  by  his  obedience  to  the  subpoena. 
Bonesteel  v.  Lynde,  and  Stalker  v.  Gaunt,  above  cited. 

Notice  to  produce.]— I?  the  documents  so  required  are  in  the 


608  FORMAL  PREPARATIONS  FOR  TRIAL.  . 

sole  hands,  or  under  the  sole  control  of  the  adverse  party,  and 
evidence  of  their  import  only  be  requisite,  the  former  practice 
may  be  pursued,  by  giving  a  notice  to  produce  them,  or  that 
secondary  evidence  will  be  given  of  their  contents.  See  form 
in  Appendix.  That  notice  must  be  specific  in  its  terms,  and 
must  distinctly  point  out  what  is  required.  See  Stalker  v.  Gaunt, 
above  cited. 

Exclusion  of  adverse  Evidence.'] — This  proceeding  is  admis- 
sible under  special  provisions  of  the  Code:  1.  "With  reference 
to  evidence  of  an  account,  the  particulars  of  which  have  been 
required  under  s.  158,  but  have  not  been,  or  have  been  insuffi- 
ciently, furnished;  and,  2.  With  reference  to  a  paper  ordered, 
but  refused  to  be  produced,  under  s.  388.  With  regard  to  the 
latter,  it  is  expressly  provided,  that  such  exclusion  is  to  be  made 
by  the  court,  on  motion.  The  mode  of  application,  under  the 
former  state  of  circumstances,  is  left  without  special  provision. 
In  Kellogg  v.  Paine,  8  How.  329,  the  question  came  before  the 
court;  and,  although  it  was  considered  that  the  motion  might 
possibly  be  made  at  the  trial,  it  was  held  to  be  the  better  prac- 
tice, to  apply  previously  for  an  order  to  that  effect.  It  is  clear 
that,  under  these  circumstances,  the  obtaining  of  such  an  order 
is  proper,  and  will  be  most  advisable,  at  the  present  stage  of  the 
action.  It  should,  of  course,  be  made  on  the  usual  notice,  the 
facts  being  shown  by  affidavit. 

Papers,  etc.,  to  be  used  on  Trial."] — The  last  point  to  be  no- 
ticed is  the  preparation  and  furnishing  of  the  papers  neces- 
sary for  the  information  of  the  court.  This  is  provided  for  by 
section  259  of  the  Code,  which  runs  as  follows : 

§  259.  When  the  issue  shall  be  brought  to  trial  by  the  plaintiff,  he 
shall  furnish  the  court  with  a  copy  of  the  summons  and  pleadings, 
with  th<-  offer  of  defendant,  if  any  shall  have  been  made.  When  the 
issue  Bbflll  be  brought  to  trial  by  the  defendant,  and  the  plaintiff 
shall  neglect  or  refuse  to  furnish  the  court  with  a  copy  of  the  sum- 
mons ami  pleadings,  and  the  offer  of  the  defendant,  the  same  may  be 
furnished  i.y  the  defendant. 

Sec  as  to  the  correctness  of  such  copies,  Wilcox  v.  Bennett, 
1(»  I j.  O.  30.  Where  the  defendant  anticipates  that  the  plaintiff 
may  fail  to  attend,  he  should,  of  course,  be  prepared  as  above. 
If,  on  the  contrary,  an  inquest  or  judgment  by  default  be  antici- 


FORMAL  PREPARATIONS  FOR  TRIAL.  QQQ 

pated,  a  calculation  of  the  amount  for  which  the  verdict  or 
judgment  will  have  to  be  taken,  should  be  prepared  beforehand, 
so  as  to  be  ready  to  be  sworn  to,  on  the  cause  coming  on.  In 
cases  of  remittitur  with  "  venire  denovo"  where  an  opinion  has 
been  pronounced  by  the  court  above,  a  copy  of  that  opinion 
will  probably  be  required  by  the  judge  who  presides  at  the 
second  trial,  and  should  be  prepared  accordingly. 

As  a  general  rule,  where  any  papers  are  likely  to  be  required 
in  the  course  of  the  trial,  care  must  be  taken  that  they  are  in 
court,  and,  where  practicable,  copies  of  them  should  be  pre- 
pared, ready  to  hand  in  to  the  court,  when  asked  for.  Of 
course,  the  moving  party's  attorney  will  take  care,  that  any  docu- 
mentary evidence,  in  the  custody  of  the  clerk  or  other  officers 
of  the  court,  such  as  depositions  taken  on  commission,  former 
records,  or  other  documents  of  a  like  nature,  are  ready  in  court, 
when  called  for,  and  previous  notice  to  that  effect  should  be 
given  to  such  officers  accordingly. 

Postponement  of  Trial.'] — In  case  a  postponement  of  the  trial 
be  wished  for  on  the  part  of  the  plaintiff,  the  court  will  grant 
an  order  for  that  purpose  in  any  proper  case,  upon  sufficient 
cause  shown,  on  payment  of  costs  to  the  defendant,  and  on  giv- 
ing a  stipulation  to  bring  the  cause  on  at  the  next  circuit  or 
term,  (see  Kule  21,)  or,  perhaps,  without  imposing  those  terms, 
if  the  case  be  one  of  evident  necessity,  and  involving  no  hardship 
on  the  defendant.  With  the  latter  view,  it  will  be  expedient 
not  to  delajr  the  motion  till  the  last  moment,  when  expenses 
may  have  been  actually  incurred,  and,  when  necessary  to  be 
made,  it  must  of  course  be  so  upon  the  usual  notice.  In  the 
ordinary  routine  of  practice,  however,  the  necessity  of  an  appli- 
cation for  this  purpose  may  generally  be  saved,  by  means  of  a 
consent  on  the  part  of  the  opposite  party,  which  will  rarely  be 
refused,  when  the  cause  is  conducted  in  a  fitting  spirit  on  both 
sides,  and  the  request  is  really  reasonable. 

Remarks  preliminary  to  succeeding  Chapters^] — Before  entering 
on  the  consideration  of  the  actual  trial  of  the  cause,  the  subject 
of  the  discovery  of  deeds  or  documents,  the  examination  of 
parties,  and  of  the  changes  effected  by  the  Code  in  the  law  of 
evidence,  will  be  considered  in  the  three  succeeding  chapters. 

The  two  former  are,  in  strictness,  special  proceedings,  but 
39 


$tf)  DISCOVERY  OF  DOCUMENTS. 

they  are  nevertheless  so  peculiarly  appropriate  to  this  stage  of 
the  cause,  that  the  present  is  evidently  the  most  fitting  period 
for  their  consideration  ;  and  the  latter,  though  especially  inci- 
dent to  the  actual  trial,  will  be  more  conveniently  treated  of  in 
a  separate  form,  and  dissociated  from  the  formal  machinery  at 
the  hearing. 


CHAPTER   VI. 

INSPECTION  AND  DISCOVERY  OF    DOCUMENTS. 


§  185.   General  Remarks,  Statutory  Provisions. 

This  proceeding  is  provided  for  by  the  latter  portion  of 
§  888.  The  former  part  of  that  section  relates  to  the  enforce- 
ment of  the  admission  of  documentary  evidence,  and  has  been 
treated  of  in  a  preceding  chapter. 

The  statutory  provision  runs  as  follows : 

The  court  before  which  an  action  is  pending,  or  a  judge  or  justice 
thereof,  may,  in  their  discretion,  and  upon  due  notice,  order  either 
party  to  give  to  the  other,  within  a  specified  time,  an  inspection  and 
copy,  or  permission  to  take  a  copy  of  any  hooks,  papers,  and  docu- 
ments in  Iiis  possession,  or  under  his  control,  containing  evidence  relat- 
ing to  the  merits  of  the  action,  or  the  defence  therein.  If  compliance 
with  the  order  be  refused,  the  court,  on  motion,  may  exclude  the  paper 
from  being  given  in  evidence,  or  punish  the  party  refusing,  or  both. 

This  proceeding  is,  in  its  substantial  elements,  the  same  as 
that  of  the  bill  for  discovery,  under  the  former  chancery  sys- 
tem. It  is  also  expressly  provided  for,  by  the  Revised  Statutes, 
title  111.,  chap.  I.  of  part  111.,  sections  21  to  27  inclusive;  2  K.  S. 
19!),  200.  By  these  sections,  the  Supreme  Court  are  empow- 
ered to  compel  such  discovery,  in  any  proceeding  therein,  the 
practice  to  be  prescribed  by  rule;  but,  in  the  meantime,  to  be 
governed  by  that  of  the  Court  of  Chancery.  The  application  is 
expressly  prescribed  to  be  made  by  petition,  verified  on  oath, 
upon  which,  an  order  for  the  discovery,  or  to  show  cause  why 


DISCOVERY  OF  DOCUMENTS.  611 

it  should  not  be  made,  may  be  granted  by  the  court,  or  by  a 
judge.  Provisions  are  then  made  for  vacating  such  order,  on 
proof  of  compliance,  or  of  impossibility  to  comply  with  it,  or 
that  it  ought  not  to  have  been  granted;  but  all  proceedings  of 
the  party  against  whom  it  is  granted,  are,  in  the  meantime,  to 
be  stayed.  The  penalty,  in  case  of  refusal  or  neglect,  is  next 
prescribed,  as  a  non-suit  on  the  one  hand,  or  the  striking  out 
the  defendant's  pleading,  or  restricting  him  in  his  defence,  on 
the  other,  but  such  penalty  is  not  to  extend  to  any  further  pro- 
ceedings against  the  person  or  property  of  the  party  in  default; 
and  it  is  lastly  prescribed,  that  any  documents  produced  under 
any  such  order,  should  have  the  same  effect,  as  evidence,  as  if 
produced  on  notice,  according  to  the  practice  of  the  court. 

Rules  were  made  by  the  Supreme  Court  in  pursuance  of 
these  provisions,  by  which  the  former  practice  was  governed. 
See  works  on  that  practice.  But  those  rules  are,  of  course, 
now  superseded  by  those  of  August,  1849. 

The  present  Rules  in  relation  to  this  practice,  are  Nos.  8  to 
11  inclusive,  and  run  as  follows: 

Rule  8.  Applications  may  be  made,  in  the  manner  provided  by  law, 
to  compel  the  production  and  discovery  of  books,  papers,  and  docu- 
ments relating  to  the  merits  of  any  civil  action  pending  in  this  court,  or 
of  any  defence  in  such  action,  in  the  following  cases : 

1.  By  the  plaintiff,  to  compel  the  discovery  of  books,  papers,  or 
documents,  in  the  possession  or  under  the  control  of  the  defendant, 
which  may  be  necessary  to  enable  the  plaintiff  to  frame  his  complaint, 
or  to  answer  any  pleading  of  the  defendant. 

2.  The  plaintiff  may  be  compelled  to  make  the  like  discovery  of 
books,  papers,  or  documents,  when  the  same  shall  be  necessary  to 
enable  the  defendant  to  answer  any  pleading  of  the  plaintiff. 

Rule  9.  The  petition  for  such  discovery  shall  state  the  facts  and 
circumstances  on  which  the  same  is  claimed,  and  shall  be  verified  by 
affidavit,  stating  that  the  books,  papers,  and  documents,  whereof  dis- 
covery is  sought,  are  not  in  the  possession,  nor  under  the  control  of  the 
party  apphing  therefor,  and  that  the  party  making  such  affidavit  is 
advised  by  his  counsel,  and  verily  believes,  that  the  discovery  of  the 
books,  papers,  or  documents  mentioned  in  such  petition,  is  necessary,  to 
enable  him  to  draw  his  complaint,  answer,  demurrer,  or  reply,  or  to 
prepare  for  trial,  as  the  case  may  be. 

Rule  10.  The  order  granting  the  discovery  shall  specify  the  mode 
in  which  the  same  is  to  be  made,  which  may  be,  either  by  lequiring  the 
party  to  deliver  sworn  copies  of  the  matters  to  be  discovered,  or  by  re- 


612  DISCOVERY  OF  DOCUMENTS. 

quiring  him  to  produce  and  deposit  the  same  with  the  clerk  of  the 
county  in  which  the  trial  is  to  be  had,  unless  otherwise  directed  in  the 
order.  The  order  shall  also  specify  the  time,  within  which  the  discovery 
is  to  be  made.  And,  when  the  papers  are  required  to  be  deposited,  the 
order  shall  specify  the  time  that  the  deposit  shall  continue. 

Rule  11.  The  order,  directing  the  discovery  of  books,  papers,  or 
documents,  shall  operate  as  a  stay  of  all  other  proceedings  in  the  cause, 
until  such  order  shall  have  been  complied  with  or  vacated  ;  and  the 
party  obtaining  such  order,  after  the  same  shall  be  complied  with  or 
vacated,  shall  have  the  like  time  to  prepare  his  complaint,  answer,  re- 
ply, or  demurrer,  to  which  he  was  entitled  at  the  making  of  the  order. 
But  the  justice,  in  granting  the  order,  may  limit  its  effect,  by  declaring 
how  far  it  shall  operate  as  a  stay  of  proceedings. 

It  will  be  observed  that  these  Eules  only  provide,  in  terms, 
for  the  case  of  a  discovery  sought  with  a  view  to  the  due  fram- 
ing of  the  pleadings  in  the  cause,  and  are  silent  as  to  the  many 
other  occasions,  on  which  such  a  discovery  may  become  neces- 
sary, during  the  progress  of  a  contested  suit.  On  the  other 
hand,  the  Code  and  Eules,  taken  together,  clearly  extend  the 
powers  of  courts  of  justice,  in  relation  to  discovery,  to  all  the 
tribunals  of  superior  jurisdiction,  except  the  Court  of  Appeals, 
without  exception  or  qualification ;  and  Rules  10  and  11  may 
be  considered  as  in  part,  at  least,  if  not  generally  applicable  to 
all  cases,  in  which  a  discovery  is  proper,  under  either  the  old 
or  the  new  system. 

The  remedies  above  cited  are  concurrent ;  and  the  party  ap- 
plying for  relief  of  this  nature,  may  shape  his  application,  either 
under  the  provisions  of  the  Revised  Statutes,  or  those  of  the 
Code,  at  his  option.  Follett  v.  Weed,  3  How.  303,  1  C.  R.  65 ; 
Stanton  v.  The  Delaware  Mutual  Insurance  Company,  2  Sandf. 
662;  Moore  v.  Pentz,  Id.  664.  "There  is  no  incongruity  be- 
tween the  two  systems,  and  they  may  well  stand  together." 
This  was  held  to  be  the  case,  both  generally,  and  specially, 
under  sec.  469,  which  retains  the  former  Rules  and  practice, 
where  consistent  with  the  Code.  See,  likewise,  Gelston  v.  J\far- 
ehall,  6  How.  898;  Brevoort  v. Warner,  8  How.  321 ;  Lovellr. 
Clarke,  7  How.  L58;  and  Hoyt  v.  American  Exchange  Bank,  1 
Duer,  652,  8  How.  89. 

Tt  is  clear  that  the  prohibition  of  actions  to  obtain  discovery 
under  oath,  effected  by  sec.  889,  does  not  apply  to  proceedings 
of  this  nature,  but  only  to  the  ordinary  bill  of  discovery  for  the 


DISCOVERY  OF  DOCUMENTS.  G13 

examination  of  a  defendant,  under  the  old  chancery  practice. 
See  Follett  v.  Weed,  3  How.  303,  1  C.  R.  65,  above  cited. 

When  the  books  of  an  adversary  are  relied  on,  the  party 
who  does  so,  must  take  them  as  evidence  of  charges  against 
him.  His  own  books  cannot,  on  the  contrary,  be  used  by  him 
in  his  own  favor.     Low  v.  Payne,  4  Comst.  247. 


§  186.     Discovery  under  Rules. 

The  two  systems  are,  in  fact,  to  a  certain  degree,  not  merely 
concurrent,  but  distinguishable,  and  the  distinction  seems  to  be 
this:  i.  e.,  that,  where  the  discovery  sought  is  for  the  purpose  of 
assisting  in  the  preparation  of,  or  with  a  view  to  answer,  any 
pleading  in  the  cause,  the  case  falls  more  peculiarly  under  the 
provisions  of  the  Eevised  Statutes,  and  of  the  Rules;  where,  on 
the  contrary,  the  application  is  made  after  issue,  and  with  a 
view  to  prepare  for  trial,  the  Code  more  exclusively  governs. 

This  distinction  is  more  especially  drawn  in  Qelston  v.  Mar- 
shall, 6  How.  398,  which  holds  that,  where  the  application  is 
with  a  view  to  enable  the  defendant  to  answer,  section  388  is 
not  applicable,  and  the  application  comes  under  the  Revised 
Statutes  and  the  Rules,  and  especially  Rule  9,  which  provides 
that  the  applicant  shall  state  the  facts  and  circumstances  under 
which  the  discovery  is  claimed,  according  to  the  old  chancery 
practice.  The  papers  there  sought  to  be  discovered,  being 
apparently  matters  of  evidence  merely,  and  not  absolutely 
necessary,  with  a  view  to  prepare  the  pleading,  in  the  first 
instance,  the  application  was  accordingly  denied.  See,  like- 
wise, Stanton  v.  The  Delaiuare  Mutual  Insurance  Company,  before 
noticed,  and  Higgins  v.  Bishop,  12  L.  O.  127,  where  an  applica- 
tion was  denied,  because  framed  under  the  provisions  of  the 
Code,  and  not  under  those  of  the  Revised  Statutes. 

The  same  distinction  is  also  drawn  in  Keeler  v.  Dusenbury, 
1  Duer,  660;  11  L.  0.  287,  where  an  order  for  a  discovery  was 
altogether  refused,  in  a  proceeding,  not  with  a  view  to  relief, 
but  in  order  to  perpetuate  testimony.  It  is  also  laid  down  that, 
where  the  discovery  is  sought  with  a  view  to  enable  a  plaintiff 
to  frame  his  complaint,  the  discretionary  powers  of  the  court 
will  not  be  exercised,  without  strong  affidavits,  showing  its 
necessity  to  enable  the  plaintiff  to  obtain  redress.     Discovery, 


614  DISCOVERY   OF  DOCUMENTS. 

under  the  Code,  should  not  properly  be  made  before  issue 
joined;  there  can  be  no  merits  of  the  case  till  then.  See,  how- 
ever, Miller  v.  Mather,  5  How.  1G0,  2  C.  E.  101,  below  cited. 

In  Hoyt  v.  The  American  Exchange  Bank,  1  Duer,  652;  8 
How.  89,  the  subject  of  discovery,  in  relation  to  specific  entries 
in  the  books  of  an  adverse  party,  is  treated  at  great  length,  and 
the  views  of  the  Superior  Court  on  the  subject,  are  generally 
and  distinctly  stated.  The  concurrence  of  the  two  systems  is 
unequivocally  laid  down,  and  the  distinction  between  applica- 
tions, under  the  Eevised  Statutes  on  the  one  hand,  and  under 
the  Code  on  the  other,  is  acknowledged.  With  regard  to  the 
former,  it  is  held  that,  if  a  party  applies  under  the  Revised 
Statutes,  and  makes  out  a  case,  as  provided  for  by  the  Rules,  he 
has  a  right  to  a  discovery.  The  court  will,  however,  exercise 
its  discretion,  as  to  the  manner  in  which  that  discovery  should 
be  made.  In  ordinary  cases,  and  unless  indispensable  to  pro- 
tect the  rights  of  the  party  applying,  the  court  will  not  order 
an  inspection  to  be  given,  or  a  deposit  to  be  made,  but  sworn 
copies  of  books  or  entries,  or  of  papers  and  documents,  to  the 
discovery  of  which  the  applicant  shows  a  right,  will  be  ordered 
to  be  furnished.  The  application,  in  these  cases,  must  conform 
exactly  to  the  provisions  of  Rule  9,  and  the  particulars,  of  which 
a  discovery  is  sought,  must  be  set  forth,  according  to  the  old 
chancery  practice.  The  opposite  party  cannot  be  subjected  to 
a  fishing  examination,  whether  he  has  or  has  not  material  evi- 
dence in  his  possession,  by  way  of  mere  discovery,  or  unless  by 
his  examination  as  a  witness,  so  that  his  deposition  may  be 
made  evidence  for,  as  well  as  against  him;  and  if,  in  answer  to 
the  order,  he  denies,  fully  and  explicitly^,  that  there  are  any 
such  entries,  books  or  papers,  under  his  control,  there  is  an  end 
of  the  application.  He  cannot  be  subjected  to  a  general  inquisi- 
torial examination.  (See,  however,  Higgins  v.  Bishop,  and 
Souihart  v.  Dwight,  below  cited,  as  containing  partial  qualifica- 
tions of  the  general  doctrine  thus  laid  down.) 

In  the  case  now  under  consideration,  a  referee  had  been 
appointed,  t<>  ascertain  whether  a  previous  order  for  discovery, 
obeyed  in  part,  had  been  fully  complied  with;  Avith  power  for 
i  referee  to  inspect  the  books  of  the  defendants,  for  that 
purpose.  Tl  was  beld  that  the  court  had  no  power  to  grant  an 
order  of  that  description,  either  cinder  the  Code,  or  under  the 
former  system.      In  applications  under  the  Code,  strictly  speak- 


DISCOVERY  OF  DOCUMENTS.  Q\fr 

ing,  the  only  discretion  which  the  court  can  exercise  is,  in 
determining  whether  an  inspection  will  be  given  at  all.  If  it 
grant  a  discovery  under  that  section,  it  has  no  discretion  in 
directing  the  manner  in  which  it  shall  be  made.  The  inspection 
is  to  be  given,  at  all  events,  and  the  only  alternative  presented 
to  the  adverse  party  is,  either  to  give  a  copy,  or  to  submit  to 
the  inconvenience  of  allowing  the  petitioner  to  make  one.  If  a 
party  applies  under  the  Code,  he  should  be  required  to  make  a 
case,  as  strong  and  urgent  as  is  deemed  necessary  to  entitle  him 
to  a  production  of  books  or  documents,  instead  of  sworn  copies. 
See,  however,  several  cases,  below  cited,  in  which  a  less  restricted 
doctrine  is  maintained,  with  reference  to  this  last  point. 

In  the  same  case  the  question  is  further  considered,  as  to  the 
proper  course  to  be  taken  by  the  applicant,  in  the  event  of  an 
incomplete  discovery  being  made,  under  an  order  to  deliver 
sworn  copies.  It  is  held,  as  above  noticed,  that  the  appoint- 
ment of  a  referee  to  examine  the  books  of  the  party  is  clearly 
inadmissible.  The  proper  course  appears  to  be  as  follows: 
where  the  sworn  copies  indicate  that  the  discovery  may  not  be 
complete,  the  party  should  apply  to  the  court,  for  an  order  for 
his  adversary  to  show  cause  why  further  copies  should  not  be 
given  ;  and,  unless  the  control  of  the  documents,  or  the  exist- 
ence of  the  entries  be  denied,  a  peremptory  order  should  be 
granted.  In  that  particular  case,  it  was  also  considered  that 
such  copies  should  be  verified  by  the  oath  of  the  president,  as 
well  as  by  that  of  the  cashier  of  the  bank  there  in  question. 
See  likewise,  to  the  same  effect,  Meakings  v.  Cromwell,  1  Sand- 
ford,  698. 

In  Brevoort  v.  Warner,  8  How.  321,  similar  views  in  relation 
to  discovery  are  entertained,  and  the  same  principle  is  main- 
tained, i.  e.,  that  applications  for  discovery  are  still  governed 
in  all  respects  hj  the  old  chancery  practice.  The  distinction 
between  applications  under  the  Eules,  and  under  the  Code,  is 
still  more  definitely  drawn,  it  being  held,  that  section  388  ex- 
tends only  to  inspection,  (which  implies  production,)  and  a 
copy,  and  not  to  discovery.  It  is  held,  as  in  Hoyt  v.  The  Ameri- 
can Exchange  Bank,  that  a  mere  discovery,  properly  so  called, 
should  be  in  no  other  way  than  by  the  examination  of  the 
party,  on  which  examination,  the  production  may  be  accompa- 
nied with  a  statement  of  every  thing  which  is  necessary  to  pro- 
tect him  from  consequences ;  and  the  proceeding  under  the 


616  DISCOVERY  OF  DOCUMENTS. 

Rules  is  only  applicable  to  the  production  of  specified  docu- 
ments, and  not  to  a  general  discovery.  The  subject  of  disco- 
very in  general  is  then  examined  at  great  length,  and  nume- 
rous cases  cited.  Although,  by  a  bill  of  discovery  under  the 
former  system,  and  by  an  examination  of  the  party  now,  a  full 
and  searching  discovery  may  be  obtained  from  a  defendant, 
still,  a  mere  random  fishing  inquiry  will  not  be  indulged,  and 
the  party  calling  for  a  disclosure,  must  first  make  out  a  case  on 
his  own  behalf,  entitling  him  to  it.  An  indefinite  search,  too, 
amongst  the  private  books  and  papers  of  an  adversary,  will 
not  be  permitted.  Where  the  book  or  document  is  described, 
and  its  contents  known,  there  can  be  no  difficulty,  and  the 
court  can  determine  whether  there  shall  be  production  and  in- 
spection, and  to  what  extent,  and  in  what  manner.  If  the  appli- 
cant has  such  an  interest,  that  he  has  a  right  to  the  examina- 
tion of  the  whole  of  the  book  or  document,  the  examination 
may  be  general ;  and  so,  of  a  class  of  books  and  documents,  as 
the  books  kept  by  the  agent  of  a  party,  as  such  agent,  or  the 
correspondence  between  principal  and  agent,  &c,  or  as  to  part- 
nership papers.  See  Higgins  v.  Bishop^  12  L.  0.  127  ;  and  Stalker 
v.  Gaunt,  12  L.  0.  132,  below  cited. 

In  cases,  however,  in  which  there  is  no  such  relation  or  pri- 
vity, it  will  not  be  proper  to  compel  a  general  and  unrestricted 
examination  ;  but  the  remedy  will  be  confined  to  matters  spe- 
cified, and,  if  a  book  be  specified,  and  contain  entries  irrelevant 
to  the  applicant's  case,  the  same  objection  will  apply,  to  that 
extent.  In  that  particular  case,  it  was  held  that  the  defendant 
was  entitled  to  copies  of  entries  in  the  plaintiff's  books,  contain- 
ing entries  of  his  own  credits,  or  set-offs,  but  not  to  copies  of 
the  charges  against  him,  unless  a  strong  case  requiring  relief  of 
that  nature  be  shown.  It  was  likewise  considered  that,  where 
the  applicant's  right  to  a  production  and  inspection  is  clear,  and 
the  request  unreasonably  refused,  costs  of  the  motion  may  be 
given. 

In  Stalker  v.  (hand,  12  L.  0.  132,  the  question  of  discovery 
under  the  Code  is  again  very  fully  ami  minutely  examined,  and 
the  doctrine  maintained,  that  applications  of  this  nature  will  be 
governed  by  the  former  chancery  practice.  It  is  there  laid 
down,  as  a  gencnil  rule,  that,  where  the  information  sought  is 
attainable  by  Other  means,  either  by  the  examination  of  wit- 
nesses, or  of  the  party  himself,  a  discovery  ought  not  to  be 
granted. 


DISCOVERY  OF  DOCUMENTS.  617 

The  subject  of  discovery  under  the  Code  is  also  again  entered 
into  at  great  length,  and  numerous  authorities  cited,  in  Terry  v. 
Rubel,  12  L.  0. 138,  which  case  confirms  the  proposition  laid  down 
in  those  last  referred  to,  i.  e.,  that  a  simple  discovery,  as  such,  can- 
not be  had,  unless  accompanied  by  the  examination  of  the  party, 
and  that  the  process  of  subpoena  duces  tecum  will  be  appropriate 
for  that  purpose.  In  Jarvis  v.  Cleric,  12  L.  0.  129,  and  also  by 
implication  in  Stalker  v.  Gaunt,  12  L.  0. 124,  it  is  held  that  process 
of  the  latter  description  is  appropriate,  and  may  be  enforced,  as 
well  with  reference  to  the  examination  of  a  party  under  s.  890 
of  the  Code,  as  when  that  examination  takes  place  on  the  actual 
trial. 

An  application  for  discovery  was  held  not  to  be  debarred  by 
a  previous  offer  to  allow  judgment  on  the  part  of  the  defendant, 
where  the  plaintiff  avowed  his  object  to  be  an  amendment  of  the 
complaint,  in  consequence  of  his  having  found  out  that  he  had 
not  claimed  an  amount  that  was  due  to'  him.  Merchant  v.  The 
New  York  Life  Ins.  Co.,  2  Sandf.  669,  2  C.  R,  66;  Id.  87. 


§  187.    Discovery  and  Inspection  under  the  Code. 

This  subject  has  been  in  some  measure  entered  upon  under 
the  foregoing  head,  and  particularly  in  the  cases  of  Hoyt  v.  The 
American  Exchange  Bank,  and  Br&voort  v.  Warner,  there  cited. 
This  remedy,  in  contradistinction  to  the  former,  is  only  appli- 
cable, as  a  general  rule,  to  those  cases  in  which  issue  has  been 
actually  joined,  and  with  a  view  to  prepare  for  trial ;  and  the  case 
to  be  made  out,  to  entitle  an  applicant  to  this  species  of  relief, 
would  seem  to  require  a  higher  degree  of  interest  in  the  event  to 
be  shown,  to  warrant  the  exercise  of  the  discretion  of  the  court. 
Where,  however,  the  remedy  is  granted,  it  is  more  summary  and 
searching  in  its  nature,  than  that  considered  under  the  previous 
head. 

In  cases  of  this  description,  the  powers  under  the  Code  are 
paramount,  and  are  not  in  any  wise  fettered  by  the  restrictions 
imposed  in  the  Rules,  with  reference  to  the  peculiar  class  of  ap- 
plications which  are  more  especially  governed  by  them. 

"  It  certainly  was  not  intended,  by  the  adoption  of  these  Rules, 
to  confine  the  discovery  of  documentary  evidence  to  the  two 
cases  mentioned  in  the  8th  Rule ;  on  the  contrary,  it  was  intend- 


618  DISCOVERY  OF  DOCUMENTS. 

ed  to  leave  all  proceedings  instituted  under  the  388th.  sec.  of  the 
Code,  to  be  governed  by  its  provisions,  uncontrolled  and  unaf- 
fected by  the  Rules;  such,  at  any  rate,  is  the  case.  If,  therefore, 
the  plaintiffs  have  presented  a  case  which,  under  the  provisions 
of  the  Code,  entitles  them  to  a  discovery,  the  Rules  cannot  ope- 
rate to  deprive  them  of  that  right."  Exchange  Bank  v.  Monieath, 
4  How.  280;  2  C.  R.  148. 

In  the  same  case,  it  was  held  that  it  was  not  necessary  that  the 
affidavit  on  which  the  application  is  grounded  should  be  that  of 
the  party :  "  the  facts  may  be  shown  by  the  oath  of  any  other 
person."  And  further,  that  it  is  not  necessary,  in  such  applica- 
tion, for  the  party  to  swear  that  the  documents  sought  to  be  dis- 
covered are  not  in  his  own  possession.  "It  is  enough  for  him 
to  show  what  the  statute  requires,  that  they  are  in  the  posses- 
sion or  under  the  control  of  the  adverse  party ;  and,  in  this  re- 
spect, it  is  sufficient  if  he  shows  a  state  of  facts  which  satisfies 
the  court  or  officer,  that  the  party,  against  whom  the  application 
is  made,  has  the  ability  to  comply  with  the  order  for  discovery." 
In  the  same  decision  it  is  likewise  laid  down,  that,  where  the 
application  is  bond  fide,  the  order  for  discovery  will  be  consi- 
dered almost  as  of  course.  "It  is  true,"  says  the  learned  judge, 
"that the  application  is  addressed  to  the  discretion  of  the  court 
or  judge ;  but,  in  the  exercise  of  that  discretion,  no  officer  would 
feel  himself  justified  in  withholding  such  a  discovery,  when 
satisfied  that  the  application  is  made  in  good  faith,  and  that  the 
party  against  whom  it  is  made,  has  the  ability  to  comply  with 
the  order,  and  that  the  books,  &c,  of  which  a  discovery  is 
sought,  contain  material  evidence." 

Such  application  must,  "nevertheless,  be  bond  fide  in  every 
respect,  or  the  above  rule  will  not  apply.  In  a  case  where  the 
circumstances  presented  strong  ground  for  suspicion  that  the 
proceeding  was  taken  for  the  mere  purpose  of  delay,  and  the 
application  was  made,  after  the  plaintiff  had  more  than  once 
been  thrown  over  the,  circuit  by  interlocutory  orders,  the  same 
judge  expressed  himself  as  follows:  "It  is  not  a  matter  of 
course  to  grant  .-i  discovery  under  the  statute.  Some  degree  of 
diligence,  :it  least,  should  he  shown  ;  and  where,  as  in  this  case, 
it  appears  that  the  party  making  the  application  is  chargeable 
with  gross  negligence,  if  not  with  had  faith,  the  order  for  a  dis- 
covery ought  not  to  be  granted,  or,  if  granted,  should  not  be 
upheld:"  and  the  Order  in   that  ease  was  therefore  vacated  by 


DISCOVERY  OF  DOCUMENTS.  619 

the  general  term.  JTooJcer  v.  Matthews,  3  Howard,  329  ;  1  C. 
R 108. 

In  a  bond  fide  case,  however,  the  mere  question  of  the  time 
at  which  the  application  is  made,  is  not  a  bar  to  it.  Thus,  in 
The  Mechanics'  Bank  v.  James,  2  C.  E.  46,  discovery  was  grant- 
ed, when  the  cause  was  in  progress  of  hearing  before  a  referee, 
when  the  necessity  for  that  discovery  arose  from  evidence  then 
introduced  by  the  plaintiff,  of  which  defendant  had  no  previous 
knowledge. 

In  Miller  v.  Mather,  5  How.  160,  2  C.  E.  101,  a  similar  order 
was  made  before  issue  had  been  joined,  on  the  principle  laid 
down  that  relief  would  be  granted  in  any  case,  in  which,  under 
the  old  law,  discovery  might  have  been  obtained.  As  a  general 
rule,  however,  an  application  of  this  description  will,  for  obvi- 
ous reasons,  be  more  properly  made,  after  the  actual  joinder  of 
issue.  See  Keeler  v.  Dusenbury,  1  Duer,  660 ;  11  L.  0.  287,  before 
noticed. 

The  power  of  the  court  to  compel  a  discovery,  is  asserted  in 
its  fullest  extent,  in  the  case  of  Powers  v.  Elmendorf,  4  How.  60, 
2  C.  E.  44,  where  it  was  held,  that  that  power  is  unfettered  by 
the  restrictions  imposed  upon  it,  whilst  exercised  by  the  Court 
of  Chancery,  or  by  the  Supreme  Court,  under  the  provisions  of 
the  Eevised  Statutes.  The  discovery  now  obtainable  is  not  con- 
fined to  the  evidence  which  the  party  seeking  it  requires  for  his 
own  title,  but  it  extends  to  the  enabling  each  party  to  ascertain 
what  documentary  evidence  his  adversary  holds,  and  upon  which 
such  adversary  is  relying  to  maintain  himself  upon  the  trial. 
(See,  however,  Brevoort  v.  Warner,  above  referred  to,  by  which 
this  doctrine  is  partially  qualified,  though  not  denied  in  toto.) 

The  order  granted  in  Powers  v.  Elmendorf  extended,  therefore, 
to  the  production  and  delivery  of  copies  by  the  defendants,  of 
all  papers  and  documents  "  upon  which  they  would  rely  at  the 
trial,"  "  as  containing  evidence  to  sustain  the  allegation  in  their 
answers,"  on  which  they  relied  in  opposition  to  the  plaintiff's 
claim.  And  leave  was  given  to  the  plaintiffs,  should  the  defend- 
ants fail  to  comply,  "  to  apply  for  a  further  order  that  any  pa- 
pers or  documents,  of  which,  by  the  terms  of  the  order,  copies 
ought  to  have  been  furnished,  shall  be  excluded  as  evidence 
upon  the  trial  ;  or  for  such  other  appropriate  order  as  the  cir- 
cumstances may  justify.  The  first  order  may  be  made  by  a 
judge  or  justice  out  of  court,  but  the  second  order  can  only  be 


620  DISCOVERY  OF  DOCUMENTS. 

made  by  the  court,  upon  evidence  of  a  refusal  to  comply  with 
the  first." 

The  power  of  the  court,  in  case  of  a  refusal  to  produce,  does 
not  extend,  however,  to  compel  the  defendant  to  make  any  ad- 
mission of  the  plaintiff's  case,  beyond  what  would  be  implied 
from  a  neglect  to  plead.  Follett  v.  Weed,  3  How.  360.  The 
plaintiff  is,  under  such  circumstances,  "to  be  placed  in  the  same 
situation  in  which  he  would  have  been,  if  the  defendants  had 
suffered  default  for  want  of  a  plea."  "  The  amount  of  his  re- 
covery must,  of  course,  depend  on  his  proof  of  the  amount  of 
injury  sustained.  Under  the  measure  of  1848,  the  powers  of 
the  court  extended  only  to  papers,  and  not  to  books.  See  ear- 
lier report  in  same  case,  3  How.  303,  1  C.  R.  65,  but  that  defect 
is  now  remedied. 

An  offer  to  allow  the  plaintiff  to  take  judgment  for  the 
amount  of  his  claim,  under  sec.  385,  was  held  to  be  no  bar  to  a 
motion  for  discovery,  where  the  plaintiff  avowed  his  intention 
to  amend  his  complaint,  having  discovered  that  he  had  not  de- 
manded all  that  was  due  to  him.  Merchant  v.  New  York  Life 
Insurance  Company,  2  Sandf.  669,  2  C.  E.  66,  further  reported, 
2  C.  R.  87. 


§  188.    Mode  and  Course  of  Application. 

Petition  proper  Form^\ — In  The  Exchange  Bank  v.  Monteath, 
4  How.  280,  2  C.  R.  148,  above  cited,  the  court  was  disposed  to 
consider  that  an  application  of  this  nature  might  be  made  on 
affidavit  only,  without  being  founded  on  a  petition,  as  required 
by  the  Revised  Statutes.  Even  if  this  doctrine  be  admitted,  it 
is  clearly  only  applicable  to  a  motion  under  sec.  388,  and  not 
to  that  class  of  cases  which  fall  peculiarly  under  the  provi- 
sions of  the  Rules.  Rule  9,  as  regards  these  cases,  expressly 
provides  the  contrary.  In  any  case,  however,  the  proceeding 
by  petition  will  be  admissible.  Sec  Follett  v.  Weed,  Lovell  v. 
Clarke,  and  other  cases,  above  cited,  in  reference  to  the  pro- 
visions of  the  Code  and  the  Rules  being  concurrent;  and,  in 
Dole  v.  Fellow,  6  How.  451,  l  0.  EL.  (N.  S.)  146,  it  was  ex- 
pressly held  that  the  application  must  bo  grounded  on  peti- 
tion in  all  cases,  and  a  motion,  on  affidavit  only,  was  accord- 
ingly denied. 


DISCOVERY  OF  DOCUMENTS.  621 

An  application  by  petition  will  therefore  be,  at  all  events,  the 
most  prudent  mode  in  all  cases.     For  forms,  see  Appendix. 

A  copy  of  the  petition  and  affidavit  of  verification,  and  of 
any  other  affidavits  or  evidence,  if  any,  to  be  used  on  the  mo- 
tion, must  be  served  on  the  opposite  party,  with  the  usual  notice 
of  motion  grounded  thereon.  See  Appendix.  Or,  the  notice 
may  be  framed  in  the  form  of  an  order  to  show  cause,  if  an 
interim  stay  of  proceedings  be  advisable. 

Opposition  to  Motion.'] — It  is,  of  course,  competent  to  the  party 
against  whom  relief  is  sought,  to  oppose  it,  on  the  return  of  the 
notice  or  order,  on  any  of  the  usual  grounds,  and  to  introduce 
counter  affidavits  for  that  purpose.  Those  affidavits  must,  how- 
ever, be  certain  and  positive.  Where,  therefore,  a  defendant 
swore  that  he  had  no  recollection  "of  a  receipt  asked  for,  that 
he  had  searched  for  it,  but  without  finding  it,  and  that  he  be- 
lieved it  was  lost  or  mislaid,  and,  to  the  best  of  his  knowledge 
or  information,  no  such  receipt  was  in  his  possession,  or 
under  his  control,"  such  excuse  was  held  to-be  insufficient.  "A 
party,  to  excuse  himself  from  making  a  discovery  of  any  pa- 
pers, alleged  on  oath  by  the  adverse  party  to  be  in  his  posses- 
sion, must  make  an  affidavit  in  the  terms  prescribed  by  the 
Revised  Statutes,  and  swear  positively  that  the  papers  are  not 
in  his  possession,  or  under  his  control."  Souihart  v.  Dwight, 
2  C.  R.  83,  2  Sandford,  672.  "He  must  make  such  an  ex- 
amination as  to  enable  him  to  do  this,  or  state  facts,  with  his 
denial,  when  expressed  as  it  is  here,  which  will  show  that  such 
denial  is  equivalent  to  the  positive  oath  required  by  the  sta- 
tute." 

Where,  however,  the  party  makes  a  positive  and  complete 
denial  to  the  latter  effect,  there  is  an  end  of  the  application. 
See  Hoyt  v.  The  American  Exchange  Bank,  above  cited.  .  See, 
however,  Higgins  v.  Bishop,  12  L.  O.  127,  below  referred  to. 
The  only  course  to  be  pursued,  under  those  circumstances,  will 
be  an  examination  of  the  party.  See  same  case,  and  also  Bre- 
voort  v.  Warner,  before  noticed.  And  the  production  of  the 
documents  required  may,  under  these  circumstances,  be  com- 
pelled by  the  ordinary  process  of  subpcma  duces  tecum.  See 
Bonestecl  v.  Lynde,  Stalker  v.  Gaunt,  Higgins  v.  Bishop,  and  Jarvis 
v.  Cleric,  as  cited  in  the  last  section,  overruling  Trotter  v.  Latson, 
to  the  contrary  effect,  as  there  detailed. 


622  DISCOVERY  OF  DOCUMENTS. 

If  the  motion  for  a  discovery  or  inspection  be  refused,  the 
prevailing  party  will  be  entitled  to  draw  up  and  serve  the  order 
thereupon,  in  the  usual  manner,  though,  unless  an  interim  stay 
of  proceedings  have  been  obtained,  this  will  scarcely  be  re- 
quisite. 

Course  of  Applicant,  when  Motion  granted^ — If  the  order  be 
granted,  care  must  be  taken,  in  framing  it,  to  comply  with  the 
requisites  of  Rule  10,  as  above  cited,  and  to  specify  the  mode 
of  such  discovery,  the  time  within  which  it  is  to  be  made,  and, 
if  a  deposit  be  directed,  the  period  for  which  such  deposit  is 
to  continue,  as  thereby  prescribed.  See  Appendix.  It  must, 
of  course,  be  drawn  up,  and  served  upon  the  opposite  party,  in 
the  usual  manner. 

The  effect  of  the  granting  of  such  an  order,  in  indefinitely 
extending  the  time  to  plead,  as  regards  the  party  by  whom  it  is 
obtained,  and  effecting  a  general  stay  of  proceedings,  until  com- 
plied with  or  vacated,  will  have  been  noticed  under  Eule  11. 
Of  course,  the  stay  of  proceedings  hereby  granted  expires,  ipso 
facto,  on  a  due  compliance  with  the  order,  without  any  necessity 
for  a  further  application  to  the  court. 

The  mode  of  enforcing  a  full  and  efficient  compliance  with 
an  order  of  this  description,  and  the  penalty  for  its  disobedience, 
have  been  already  in  part  considered.  See  Powers  v.  Elmendorf 
Hoyt  v.  The  American  Exchange  Bank,  and  Follettv.  Weed,  above 
cited.  It  will  be  observed  that  the  remedy  is  much  more  sum- 
mary under  the  Code,  than  under  the  Revised  Statutes.  In 
fact,  there  seems  no  limit  to  which  the  powers  of  the  court  to 
"punish  the  party  refusing,"  might  not  be  carried,  in  an  ex- 
treme case,  though,  as  yet,  no  instance  of  the  kind  appears  to 
have  occurred.  An  application  for  a  commitment  for  contempt, 
made  in  the  ordinary  form,  is  the  evident  remedy  for  an  ex- 
treme case  of  this  description,  should  such  a  case  arise.  Under 
ordinary  circumstances,  an  order,  excluding  the  document  from 
being  givi  n  in  evidence,  according  to  the  course  prescribed  in 
I'm/-  /.  v.  Elmendorf  will  be  sufficient  to  insure  justice  between 
the  parties.  Where,  however,  the  document  retained  by  the 
adverse,  is  essentia]  to  the  case  of  the  moving  party,  an  appli- 
cation  for  ;i  commitment  will  be  clearly  appropriate,  or  the 
motion  might  possibly  be  made,  that  the  pleading  of  the  ad- 
verse party  be  stricken  out  altogether,  and  judgment  given  in 


DISCOVERY  OF  DOCUMENTS.  623 

favor  of  the  applicant.  That  mode  of  "punishment,"  (to  use  the 
terms  of  the  section,)  seems  highly  appropriate,  and  this  view  is 
confirmed  by  Bonesteel  v.  Lynde,  8  How.  226,  affirmed  8  How. 
352,  above  cited,  in  which  an  order  of  that  description  was 
granted,  on  the  fraudulent  neglect  of  the  defendant  to  produce 
a  paper,  essential  to  the  plaintiff's  case,  under  a  subpoena  duces 
tecum ;  a  state  of  circumstances  which  presents  an  evident 
analogy  with  that  here  in  question. 

Mode  of  Proceeding  in  referred  Cases.] — The  power  to  order 
the  production  of  books,  &c,  is  limited  to  the  court,  or  to  a 
justice  thereof,  and  cannot  be  exercised  by  a  referee,  even  of 
the  whole  issue,  where  there  is  no  special  provision  to  that  effect, 
in  the  order  of  reference.  Where,  however,  a  referee  is  ordered 
to  take  accounts,  his  certificate  that  the  production  of  books 
and  papers  is  necessary,  will  be  presumptively  sufficient  to 
warrant  an  order  for  their  production,  and  the  burden  of 
showing  the  contrary  will  lie  on  the  adverse  party.  Frazer 
v.  Phelps,  3  Sandf.  741 ;  ICE.  (K  S.)  214.  In  such  a  case, 
therefore,  the  referee's  certificate  should  be  obtained  at  once, 
and  an  application  be  made  to  the  court  thereon  in  the  usual 
manner,  either  on  notice  or  on  order  to  show  cause. 

As,  however,  the  necessity  of  such  production  will  usually  be 
anticipated,  at  the  time  when  the  reference  is  actually  made,  an 
original  provision  to  that  effect  will  be  the  more  advisable 
course,  and  will  save  trouble  in  the  subsequent  proceedings. 

In  Fraser  v.  Phelps,  again  reported  4  Sandf.  682,  it  is  ex- 
pressly held  that,  on  a  reference  to  take  an  account,  in  a  clearly 
equitable  suit,  the  court  will  grant  express  power  to  the  referee 
to  compel  the  production  of  such  books  and  papers  as  may  be 
necessary,  and  will  enforce  his  directions  in  that  respect,  by 
attachment,  to  be  granted  on  a  previous  order  to  show  cause, 
on  the  return  of  which,  the  question  of  the  propriety  of  that 
direction  may  be  inquired  into  and  passed  upon.  The  Code 
does  not  limit  or  abridge  the  powers  which  Courts  of  Equity 
were  accustomed  to  exercise,  in  suits  for  an  account,  and  will 
clothe  the  referee  with  the  same  authority,  as  that  of  a  master 
under  the  old  practice. 

This  view  is  confirmed  by  Higgins  v.  Bishop,  12  L.  0. 127, 
and  it  was  held  that,  in  a  case  of  taking  accounts,  as  regards 
parties,  between  whom  a  right  and  liability  to  account  is  estab- 


624  EXAMINATION  OF  PARTIES. 

lislicd,  an  order  of  this  description  will  be  granted,  notwith- 
standing the  adverse  parties  may  have  made  the  statutory  oath, 
as  to  the  absence  of  material  entries.  The  party  entitled,  as 
of  right,  to  an  examination,  is  not  bound  to  be  satisfied  with 
the  oath,  under  these  circumstances.  He  is  entitled,  as  under 
the  old  practice,  to  examine  the  books,  and  to  judge  for  himself, 
whether  there  are  entries  in  them  material  to  the  cause,  the 
usual  course  as  to  sealing  up  other  entries  being  observed.  The 
application  in  that  case  being  framed  under  the  Code,  and  not 
under  the  Revised  Statutes,  was,  on  that  ground,  denied,  but 
without  costs,  an  election  being  given  to  the  plaintiff,  either  to 
apply  for  an  order  of  the  above  description,  authorizing  the 
referee  to  require  the  production  and  deposit  with  him  of  the 
books  in  question,  or,  to  examine  the  defendant  on  a  subpoena 
duces  tecum. 


CHAPTER    VII. 

EXAMINATION    OP    PARTIES. 


§  189.     Nature  of  Remedy. 

General  Remarks.'] — The  provisions  of  the  Code  in  this  re- 
spect, are  an  amplification  of  an  original  measure  upon  the 
subject,  c.  4G2  of  the  Laws  of  1847,  the  most  important  pro- 
visions of  which  are  incorporated  in  the  present  enactments. 

The  views  of  the  commissioners,  in  submitting  those  provisions 
to  the  legislature  for  their  approval,  are  thus  stated  by  them  in 
pages  2-1 !  and  245  of  their  report:  "One  of  the  great  benefits 
to  be  ex  j  h  scted  from  the  examination  of  parties,  is  the  relief  it 
will  afford  to  the  rest  of  the  community,  in  exempting  them,  in 
a  considerable  degree,  from  attendance  as  witnesses,  to  prove 
facts  which  the  parties  respectively  know,  and  ought  never  to 
dispute,  and  would  not  dispute,  if  they  were  put  on  their  oaths. 
To  effect  this  object,  it  should  seem  necessary  to  permit  the 
examination  beforehand,  that  the  admission  of  the  party  may 
save  the  necessity  of  a  witness." 


EXAMINATION  OF  PARTIES.  625 

Substitute  for  Bill  of  Discovery.'] — This  sentence  seems  more 
peculiarly  to  point  to  the  relief  to  be  afforded,  in  bringing  an 
ordinary  common  law  action  to  trial.  Another  most  important 
object  is,  however,  answered  by  the  provisions  in  question,  and 
that  is,  the  fulfilment  of  the  purposes  which,  in  chancery  cases,' 
were  answered  by  a  bill  of  discovery,  and  also  by  the  ordinary 
interrogatories  in  a  bill  in  equity,  of  whatever  nature.  The  latter 
form  no  part  of  the  system  of  pleading  as  provided  for  by  the 
Code,  whilst  the  former  is  expressly  abolished.  The  only 
remedy,  therefore,  that  parties  now  possess  in  these  respects, 
will  be,  for  the  future,  under  the  provisions  about  to  be  con- 
sidered. 

Those  in  the  preceding  chapter  are  inefficient,  for  the  purpose 
of  discovery  generally  considered.  They  only  enable  a  party 
to  call  for  specified  documents  or  entries.  Discovery,  as  hereto- 
fore obtainable  in  equity,  can  only  be  had  by  means  of  the 
present  form  of  application,  and,  where  the  production  or  dis- 
covery of  documents  is  sought  to  be  collaterally  obtained,  the 
proceedings  under  this  chapter  should  be  accompanied  by  the 
ordinary  process  of  subpoena  duces  tecum,  under  which  the  party 
will  be  compellable  to  produce  them,  in  the  same  manner  as  an 
ordinary  witness,  on  the  trial  of  a  cause,  subject  to  his  power  to 
object  to,  and  that  of  the  court  to  qualify,  the  extent  of  the  pro- 
duction and  inspection  by  the  adverse  party,  as  heretofore  exer- 
cised, on  the  production  of  documents,  at  the  actual  trial  of  a 
cause.  See  these  subjects  heretofore  considered  in  the  two  pre- 
ceding chapters,  under  the  head  of  Discovery  under  the  Code  and 
Rules,  and  of  /Subpoena.  See  likewise  the  different  cases  there 
cited,  including  as  follows,  viz. :  On  the  general  question,  Hoyt 
v.  The  American  Exchange  Bank,  1  Duer,  652,  8  How.  89  ;  Bre- 
voort  v.  Warner,  8  How.  321 ;  Stalker  v.  Gaunt,  12  L.  0.  124 ; 
Same  case,  12  L.  0. 132  ;  Terry  v.  Rubel,  12  L.  0. 138 ;  Higginsv. 
Bishop,  12  L.  0. 127.  As  to  the  remedy  by  subpoena  duces  tecum, 
Bonesteel  v.  Lynde,  8  How.  226,  affirmed  8  How.  352 ;  Stalker 
v.  Gaunt,  12  L.  O.  124;  Higgins  v.  Bishop,  12  L.  0.  127  :  Jarvis 
v.  Clerk,  12  L.  0.  129,  (which  is  express  authority,  that  the 
process  of  subpoena  duces  tecum  is  applicable  to  this  peculiar 
mode  of  examination,  Stalker  v.  Gaunt  being  implied  authority 
to  the  same  effect ;)  Stalker  v.  Gaunt,  further  reported,  12  L.  0. 
132 ;  Terry  v.  Rubel,  12  L.  0.  138,  overruling  Trotter  v.  Latson}, 
7  How.  261.  The  above  cases  are  also  in  point,  to  the  effect 
40 


626     ■  EXAMINATION  OF  PARTIES. 

that  the  examination,  for  the  above  purposes,  most  of  necessity- 
be  conducted,  so  far  as  the  discovery  of  documents  is  concerned, 
on  the  principles  in  force  in  Courts  of  Equity,  under  the  former 
practice,  in  relation  to  the  proceeding  by  bill  of  discovery ;  and 
'as  to  the  rights  and  liabilities  of  the  parties  respectively,  in 
connection  with  that  form  of  proceeding. 

The  actual  view  taken  in  the  above  case  is  in  fact  clear,  from 
the  proviso  of  the  Code  itself,  abolishing  the  former  proceeding 
by  bill  of  discovery,  as  thus  contained  in  sec.  389  : 

§  389.  No  action  to  obtain  discovery  on  o;ith,  in  aid  of  the  prosecu- 
tion or  defence  of  another  action,  shall  be  allowed,  nor  shall  any  exami- 
nation of  a  parly  be  had,  on  behalf  of  the  adverse  party,  except  in  the 
manner  prescribed  by  this  chapter. 

In  Dunham  v.  Nicholson,  2  Sandf.  636,  it  was  held  that  the 
prohibition  in  this  section  does  not  apply  to  an  action  in  the 
nature  of  a  former  creditors'  suit,  where  an  execution  had  been 
issued  and  returned  unsatisfied,  before  the  operation  of  the  Code. 
"  That  provision  does  not  apply  to  the  examination  of  a  debtor 
touching  his  property,  but  to  the  ordinary  discovery,  sought  by 
bill,  and  made  by  answer.  This  proceeding  is  in  aid  of  an  exe- 
cution, on  a  judgment  already  obtained.  The  creditors'  suit,  in 
respect  to  existing  cases,  is  not  in  terms  abolished,  and  there  is 
no  other  remedy  open  to  the  plaintiff.  All  existing  remedies 
not  inconsistent  with  the  Code,  were  retained."  See  also  Quick 
v.  Keekr,  Id.  231. 

The  prohibition  clearly  extends,  however,  to  all  such  pro- 
ceedings, in  an  actually  pending  action,  with  a  view  to  the  trial 
and  prior  to  judgment. 

§  190.     Mode   of  Examination. 

Statutory  Piwisions.] — The  examination  of  a  party  to  the 
action,  may  take  place  cither  at,  or  previous  to  the  trial.  The 
provisions  fur  this  purpose  are  contained  in  sections  390  and 
891,  which  run  as  follows  : 

8  890.  A  party  to  an  action  may  be  examined  as  a  witness,  at  the 
rice  of  the  adverse  party,  or  of  any  one  of  several  adverse  parties, 
and,  for  that  purpose,  may  be  compelled,  in  the  same  manner,  and  sub- 
ject to  the   same   rules  of  examination   as  any  other  witness,  to   testify, 

either  at  the  trial,  or  conditionally,  or  upon  commission. 


EXAMINATION  OF  PARTIES.  (J27 

§  391.  The  examination,  instead  of  being  had  at  the  trial  as  pro- 
vided in  the  last  section,  may  be  had,  at  any  time  before  the  trial,  at  the 
option  of  the  party  claiming  it,  before  a  judge  of  the  court  or  county 
judge,  on  a  previous  notice  to  the  party  to  be  examined,  and  any  other 
adverse  party,  of  at  least  five  days,  unless,  for  good  cause  shown,  the 
judge  order  otherwise.  But  the  party  to  be  examined,  shall  not  be 
compelled  to  attend  in  any  other  county  than  that  of  his  residence,  or 
where  he  may  be  served  with  a  summons  for  his  attendance. 

The  question  as  to  how  far  parties  so  examined,  are  or  are 
not  competent  to  testify,  or  how  far  their  testimony  is  or  is  not 
receivable,  will  be  considered  in  the  succeeding  chapter.  The 
remarks  in  the  present,  will  be  confined  to  the  formal  proceed- 
ings to  be  adopted  on  such  examination,  when  the  same  takes 
place  in  a  preliminary  form,  as  above  provided,  and  to  the  cases 
immediately  bearing  upon  that  point. 

In  Brockway  v.  Stanton,  2  Sandf.  640,  1  C.  E.  128,  it  was  held, 
that  there  is  nothing  in  the  remainder  of  the  Code  to  qualify 
the  above  provisions,  with  reference  to  the  examination  of  a 
party  by  commission,  out  of  the  State,  and  that  he  can  accord- 
ingly be  so  examined. 

When  Examination  may  be  had.~\ — Considerable  discrepancy  of 
opinion  has  existed,  as  to  the  extent  of  the  powers  conferred,  in 
relation  to  the  examination  of  parties  before  trial.  The  point 
on  which  that  discrepancy  has  chiefly  existed,  has  been  as  to 
whether  that  examination  can,  or  cannot  be  had,  before  issue 
joined. 

In  Balbiani  v.  Grasheim,  2  C.  E.  75,  the  plaintiffs  requiring  to 
examine  the  defendant,  with  a  view  to  prepare  the  particulars 
of  their  demand ;  the  court  dismissed  their  application  for  that 
purpose,  holding  "  that  a  party  could  not  be  examined  before 
issue  joined;  and  that,  after  issue  joined,  he  was  placed  on  the 
same  footing,  and  could  only  be  examined  under  the  like  cir- 
cumstances as  an  ordinary  witness."  See,  also,  Bennett  v. 
Hughes,  1  C.  E.  4. 

If  the  principles  here  laid  down  be  carried  out  to  their  full 
extent,  it  is  obvious  that  they  amount  to  a  complete  nullifica- 
tion of  the  remedy  formerly  obtainable  by  bill  of  discovery. 
The  case  in  question  cannot,  therefore,  be  considered  as  of 
authority.  It  is,  in  fact,  virtually  overruled  by  the  effect  of 
the  decisions  below  cited. 


(>28  EXAMINATION  OF  PARTIES. 

In  Miller  v.  Mather,  5  How.  160,  2  C.  K.  101,  it  was  held,  on 
the  contrary,  "  that  a  party  to  the  suit  may  be  examined  as  a 
witness,  before  the  joining  of  issue  in  the  action.  Such  exami- 
nation being  provided  by  the  Code,  as  a  substitute  for  the 
former  bill  of  discovery,  is  governed  by  the  rules  applicable  to 
such  bills,  and  a  discovery,  by  bill  of  discovery,  might  be  had 
at  any  time  during  the  progress  of  the  suit." 

In  Taggard  v.  Gardner,  2  Sandf.  669,  2  C.  K.  82,  it  is  laid  down, 
unconditionally,  that  a  defendant  may  be  examined  as  a  wit- 
ness, before  the  trial,  without  an  order  being  first  obtained. 

In  Partin  v.  Elliott,  2  Sandf.  667,  2  C.  E.  6(y,  the  objection 
was  taken  that  a  party  could  not  be  examined  before  the  trial, 
unless  on  the  grounds  prescribed  in  the  Revised  Statutes  for 
taking  testimony  in  that  manner :  but  such  objection  was  over- 
ruled by  the  court,  and  an  unconditional  order  for  the  examina- 
tion of  the  party  made,  the  following  principles  being  laid 
down  :  "  The  391st  section  is  positive  and  express,  that  the 
examination  may  be  had  before  the  trial,  at  the  option  of  the 
party  claiming,  and  that,  instead  of  being  had  at  the  trial.  The 
examination  before  the  trial  was  designed  to  aid  parties  in  pre- 
paring for  trial,  irrespective  of  the  residence  of  the  party  sought 
to  be  examined,  or  the  probability  of  his  being  able  to  attend 
the  trial."  See,  also,  Anderson  v.  Johnson,  1  Sandf.  713  ;  1  C. 
R.  95. 

In  these  last  cases,  the  cause  was  at  issue  at  the  time  of  the 
application,  and  the  necessity  of  such  being  the  case,  in  order 
to  an  application  of  this  nature,  is  strongly  insisted  upon  in 
Chichester  v.  Livingston,  3  Sandf.  718;  1  C.  R.  (N.  S.)  108.  It 
is,  however,  virtually  admitted  that  such  an  examination  may 
be  necessary,  in  order  to  enable  the  party  seeking  the  discovery 
to  answer  or  reply ;  but  it  is  held,  that,  in  such  cases,  "  an 
examination  ought  not  to  take  place,  unless  by  special  order  of 
the  court,  on  cause  shown  by  affidavit,  as  to  the  necessity  of  the 
examination." 

It  is  also  admitted,  that  an  examination  of  a  party  about  to 
depart  out  of  the  jurisdiction,  might  be  an  exception,  and  that, 
on  a  proper  application,  "such  examination  might  doubtless  be 
had  before  i     lie.     The  conclusion  come  to  is  thus  summed  up  : 

"As  this  is  an  interesting  and  important  question  of  practice, 
I  have  conferred  with  all  my  associates,  and  they  are  all  of 
opinion,  with  me,  that,  where  a  party  is  examined  as  a  witness. 


EXAMINATION  OF  PARTIES.  629 

before  the  trial,  merely  for  the  purpose  of  avoiding  the  neces- 
sity of  calling  him  at  the  trial,  then  such  examination  can  only 
take  place  after  issue  joined. 

"  I  do  not  mean  to  decide,  nor  is  it  necessary  to  determine,  in 
disposing  of  this  motion,  whether  a  party  can  be  examined  by 
his  adversary,  in  order  to  enable  the  adversary  to  answer  or 
reply.  It  is  possible  that  a  case  might  be  presented,  where  it 
would  be  evident  that  the  ends  of  justice  required  such  an  ex- 
amination before  answer  or  reply,  even  under  the  present  law, 
which  gives  the  absolute  right  to  such  examination  after  issue 
joined." 

In  Keeler  v.  Dusenbury,  1  Duer,  660,  11  L.  0.  287,  it  was  held 
that  an  examination  of  this  nature  cannot  be  had,  for  the  pur- 
pose of  proceedings  to  perpetuate  testimony.  It  is  also  held 
that  a  defendant  cannot  be  examined,  as  of  course,  under  the 
provisions  now  in  question,  after  service  of  summons  only,  and 
with  a  view  to  enable  the  plaintiff  to  frame  his  original  com- 
plaint ;  and  the  propriety  of  granting  such  an  application  is 
doubted,  without  strong  affidavits,  showing  its  necessity  to  en- 
able the  plaintiff  to  obtain  redress.  In  Roche  v.  Farran,  12  L. 
0.  121,  a  similar  view  is  taken.  The  subject  of  discovery  in 
general  is  entered  upon  at  length,  and  it  is  considered  that  the 
provisions  of  the  Code  have,  in  effect,  annulled  the  right  of  a 
plaintiff  to  have  a  discovery,  as  such,  before  action.  The  Code 
only  gives  the  remedy,  as  above,  in  an  action  actually  pending, 
and  seems  to  presuppose  that  the  complaint  has  been  drawn,  in 
cases  where  a  summons  for  relief  is  proper.  The  application 
for  leave  to  examine  the  defendant  in  the  first  instance,  was 
therefore  denied,  on  the  ground  that  the  facilities  given  for 
amendment,  on  the  coming  in  of  the  first  answer  of  the  defend- 
ant, and  for  examination  of  the  defendant  at  large,  after  such 
answer  has  come  in,  render  such  a  mode  of  procedure  wholly 
unnecessary. 

The  conflict  in  opinion  which  exists  in  the  above  decisions 
seems,  however,  on  examination,  to  be  more  apparent  than 
real.  Those  in  Balbiani  v.  Grasheirn,  and  Bennett  v.  Hughes, 
may  be  fairly  laid  out  of  the  consideration.  The  latter  was 
pronounced  at  so  early  a  period,  and  is  so  entirely  at  variance 
with  subsequent  decisions,  that  it  may  be  disregarded.  The 
Code  has  failed  to  draw  a  distinction,  between  proceedings  of  a 
legal  and  equitable  nature,  and  between  examinations  for  the 


630  EXAMINATION  OF  PARTIES. 

purpose  of  preliminary  discovery,  arid  those  intended  as  part 
of  the  preparations  for  actual  trial,  and  instituted  with  a  view 
to  the  examination  of  the  party  being  read  on  that  occasion, 
instead  of  his  evidence  being  taken,  viva  voce.  If  this  distinc- 
tion be  drawn,  the  above  cases  appear,  in  all  main  points,  to  be 
reconcilable,  notwithstanding  their  apparent  discrepancy.  In 
examinations  of  the  latter  nature,  the  party  is,  under  sec.  395, 
at  liberty  to  testify  on  his  own  behalf,  "  on  any  matter  pertinent 
to  the  issue,"  and  this  can  hardly  be  the  case  before  issue  is 
joined,  a  point  strongly  insisted  on  in  Chichester  v.  Livingston. 
On  the  other  hand,  in  proceedings  taken  in  lieu  of  a  bill  of 
discovery  under  the  old  practice,  a  denial  of  the  examination 
until  after  issue  joined,  would  amount  to  a  practical  denial  of 
any  remedy  in  the  premises,  a  result  which  could  hardly  be 
contemplated,  and  might  even  be  held  to  be  unconstitutional. 
In  Chichester  v.  Livingston,  the  powers  of  the  court  to  grant 
relief  of  this  nature  on  a  special  application  are  not  denied,'but, 
on  the  contrary,  virtually  admitted ;  and  the  due  exercise  of 
that  power,  Avill  practically  obviate  the  inconvenience  which 
might  otherwise  be  experienced.  The  cases  of  Keeler  v.  Dusen- 
bury,  and  Roche  v.  Farran,  are  both  " sui generis"  and  there  can 
be  little,  if  any  doubt,  that  the  doctrine  there  held  is  sound, 
and  will  be  upheld  in  practice,  a  special  application  to  the 
court  being  always  feasible,  should  a  special  state  of  circum- 
stances arise,  which  may  properly  call  for  a  special  inter- 
position. 

Notice  to  Defendant,  or  Order  in  lieu  thereof.] — The  form  of  the 
notice  prescribed  by  sec.  391  will  be  found  in  the  Appendix. 

In  Taggard  v.  Gardner,  2  Sandf.  6G9,  2  C.  R.  82,  it  was  held, 
that  all  that  is  necessary,  in  order  to  obtain  an  examination  of 
the  opposite  party,  under  sec.  391,  is  to  give  such  party  a  no- 
tice of  at  least  five  days,  and  that  "the  only  case  in  which  an 
order  for  the  examination  is  necessary,  is  where  the  party  seek- 
ing it  wishes  it  to  be  had  <>n  ;i  shorter  notice  than  five  days." 
This  view  seems  elearly  correct,  and  in  exact  conformity  with 
the  statute.  It  was  also  held,  in  the  same  case,  that,  in  addition 
to  the  notice,  In;  Bhould  be  served  with  a  subpoena  in  the  usual 
manner,  whereon  to  ground  proceedings  to  compel  his  attend- 
ance, in  the  event  of  his  refusing  to  obey  the  notice  in  the  first 
instance.      In  Jarvis  v.  Clerk,  12  L.  0.  129,  this  conclusion  is 


EXAMINATION  OF  PARTIES.  631 

reviewed,  with  reference  to  the  provision  under  section  392,  that 
a  party  so  examined  may  be  compelled  to  attend,  in  like  man- 
ner as  a  witness  who  is  to  be  examined  conditionally,  and  it  is 
held  that  the  proceedings  in  an  examination  of  this  nature, 
are  to  be  substantially  governed  by  the  Eules  prescribed  by  the 
Revised  Statutes,  in  relation  to  the  examination  of  witnesses  de 
bene  esse  ;  and  that,  although  a  subpoena  is  not  necessary,  a  sum- 
mons on  the  part  of  the  court  is,  and  that  such  a  summons 
must  be  obtained,  and  served  accordingly,  accompanied  by  the 
ordinal  process  of  subpoena  duces  tecum,  in  cases  where  a  disco- 
very is  sought,  in  addition  to  the  personal  examination  of  the 
party.  It  was  held  therefore  that,  with  a  view  to  ulterior  pro- 
ceedings at  all  events,  a  mere  notice  under  the  Code  is  not  suffi- 
cient, but  a  summons  of  the  above  nature  ought  to  be  obtained 
and  served. 

The  result  of  these  decisions  seems  to  be,  that,  where  no  ma- 
terial opposition  is  expected,  a  simple  notice  under  the  Code 
will  probably  suffice,  to  insure  the  attendance  of  the  party,  and 
to  render  the  examination,  when  taken,  admissible  for  all  pur- 
poses, in  the  event  of  his  attendance,  and  submission  to  be  exa- 
mined. The  notice  in  question  must  distinctly  specify  the  time 
and  place  of  examination,  and  must  be  .duly  served.  It  must 
also  be  served  upon  "  any  other  adverse  party,"  or  the  proceed- 
ing will  be  irregular,  and  the  examination  useless  for  all  practi- 
cal purposes. 

In  cases  where  a  strenuous  opposition  is  expected,  it  seems 
that  the  course  prescribed  in  Jarvis  v.  Clerk  will  be  unques- 
tionably prudent,  if  not  absolutely  indispensable,  and  that  it 
will  be  the  more  convenient  course,  to  obtain  and  serve  in  the 
first  instance,  an  exparte  order  to  the  same  effect  as  the  notice 
in  question.  This  mode  of  proceeding  appears  to  be  in  general 
use,  and  was  adopted  in  the  majority  of  the  cases  above  cited, 
while  it  presents  many  independent  advantages,  particularly 
with  reference  to  ulterior  proceedings,  as  before  noticed. 

If  an  order  of  this  description  be  obtained,  it  should  point 
out  the  consequences  of  a  non-attendance,  or  a  second  order, 
involving  those  consequences,  cannot  be  obtained  on  a  default 
taken  under  it.  Anderson  v.  Johnson,  1  Sandf.  713 ;  1  C.  E.  95. 
See  form  of  order  in  Appendix.  It  seems  advisable  to  take 
the  same  course  on  a  notice  also,  and  the  form  given  is  adapted 
accordingly. 


632  EXAMINATION  OF  PARTIEa 

In  Anderson  v.  Johnson,  above  cited,  it  was  held  that  a  defend- 
ant might  be  examined  within  a  district,  not  his  actual  residence, 
but  in  which,  the  order,  and  all  other  papers  in  the  cause,  had 
been  served  upon  him ;  and,  likewise,  that  a  defendant,  under 
such  circumstances,  "should  be  treated  as  a  witness,  and  must 
be  paid  his  fees,  before  he  could  be  required  to  attend." 

Course  of  Examination.'] — The  mode  of  procedure,  and  the 
final  disposal  of  the  deposition,  when  taken,  is  provided  for  by 
sec.  392.  It  is  to  be  taken  and  filed  by  the  judge,  in  the  same 
manner  as  an  examination  taken  de  bene  esse  under  the  Revised 
Statutes,  and  may  be  read  by  either  party  on  the  trial.  In  prac- 
tice, however,  the  examination  is  rarely  taken  by  the  judge  in 
person.  It  is  usually  conducted  at  the  chambers  of  the  court, 
or  elsewhere,  by  consent,  the  evidence  being  taken  down  by  the 
examining  party,  and  any  questions  that  may  arise,  pending 
that  examination,  submitted  to  the  judge  for  his  decision,  either 
each  pro  re  nata,  or  several  at  one  time,  as  may  be  most  conve- 
nient. The  admissibility  of  questions  asked,  are  clearly  matters 
proper  for  decision  at  the  time :  the  admissibility  of  the  evi- 
dence given  in  answer  to  those  questions,  will,  as  a  general  rule, 
be  reserved  for  consideration,  when  the  deposition  comes  to  be 
made  use  of  at  the  trial,  and  not  passed  upon  during  the  actual 
examination,  the  objection  being  simply  noted  on  the  deposition. 

When  an  adjournment  takes  place,  pending  the  examination, 
it  should  be  noted  on  the  deposition,  or,  more  usually,  on  the 
notice  or  order  under  which  the  party  attends,  and  the  judge's 
signature  should  be  obtained  to  it.  At  the  close  of  each  day's 
proceedings,  the  party  should  sign  that  portion  of  the  deposi- 
tion, and  be  sworn  to  it,  so  far,  and  the  usual  jurat  annexed 
:md  signed  by  the  judge.  The  same  ceremony  must,  of  course, 
be  observed  at  the  conclusion  of  the  deposition,  whenever 
completed.  The  party  must  necessarily  be  sworn  in  the  first 
instance,  and  the  only  correct  practice  will  be  that,  before  his 
final  signature,  the  deposition  should  be  read  over  to  or  by  him, 
and  any  errors  corrected,  before  he  signs  it.  When  done,  it 
ought  to  be  filed  at  once  with  the  clerk  of  the  court,  as,  if  this 
he  Omitted  t<>  be  done  within  a  reasonable  time,  it  cannot  be 
read  at  the  trial.     Ten  days  would  appear  to  be  a  reasonable 

time    for  such   purpose,  by  ;ina.l<></y  with   the   provisions  of  the 

Revised  Statutes,  in  relation  to  the  filing  of  a  deposition  taken 


EXAMINATION   OF  PARTIES.  633 

de  bene  esse.  See  2  R  S.  392,  s.  6.  It  is  very  usual  in  practice, 
however,  to  retain  the  deposition  in  the  hands  of  the  moving 
party  for  a  reasonable  period,  in  order  to  the  greater  conve- 
nience of  taking  copies  for  use,  and,  when  proceedings  are  con- 
ducted in  a  proper  spirit  on  both  sides,  there  can  be  no  practical 
objection  to  this  course.  It  is,  of  course,  competent  to  them  to 
waive,  in  like  manner,  any  other  of  the  formal  requisites  above 
prescribed,  as  by  taking  the  deposition  at  the  office  of  one  of 
the  parties,  swearing  to  it  before  a  commissioner,  &c,  if  they 
choose  to  do  so.  In  practice,  however,  the  attendance  before  a 
judge  will  be  usually  found  more  convenient,  as  it  is  the  usual 
course,  on  account  of  the  probability  of  questions  arising  as  to 
the  nature  and  course  of  the  examination,  which  he,  and  he 
alone,  will  be  competent  to  dispose  of.  The  above  few  re- 
marks will  be  a  sufficient  guide,  in  relation  to  the  conduct  of 
such  an  examination,  under  ordinary  circumstances ;  which, 
in  its  formal  features,  bears  a  close  analogy  to  the  taking  of 
testimony  de  bene  esse,  and  is  governed  by  substantially  the 
same  rules. 

The  legal  effect  of  an  examination  taken  under  these  provi- 
sions, appears  to  be  precisely  that  of  an  answer  in  chancery, 
under  the  old  practice.  It  is  conclusive  upon  the  party  exa- 
mining, unless  and  until  it  is  disproved.  Sheldon  v.  Weekes,  7 
L.  O.  57. 

In  some  respects,  however,  the  examination  under  these  pro- 
visions, presents  peculiar  and  exceptional  features,  which  must 
be  shortly  adverted  to.  The  first  of  these,  has  reference  to  the 
peculiar  relations  of  the  party,  in  contradistinction  to  those  of 
an  ordinary  witness.  These  peculiar  characteristics  will, 
therefore,  be  shortly  considered  as  follows : 

Right  to  rebut  Testimony  of  Party.'] — By  sec.  393,  it  is  expressly 
provided  that — 

§  393.  The  examination  of  the  party  thus  taken,  may  be  rebutted 
by  adverse  testimony. 

In  Armstrong  v.  Clark,  2  C.  R.  143,  the  court  held  that,  after 
calling  the  defendant  as  a  witness  on  the  trial,  the  plaintiff 
might  call  other  witnesses  to  rebut  his  testimony,  if  he  think 
proper ;  the  decision  being  based  upon  the  foregoing  section. 

It  follows,  from  the  very  nature  of  this  provision,  that  the 
examination  of  the  party  differs  materially  from  that  of  an  ordi- 


634  EXAMINATION  OF  PARTIES. 

nary  witness,  in  this  particular,  viz. :  that  the  examining  party 
is  ^entitled  to  conduct  it  in  the  nature  of  a  cross-examination, 
and  may  ask  any  questions  which,  on  actual  trial,  might  be  put 
to  an  adverse  witness.  This  consequence,  though  not  expressly 
provided  for,  follows  of  necessity,  from  the  very  nature  of  this 
remedy,  and  from  the  admitted  principle,  that  it  is  intended  to 
stand  in  the  place  of,  and  is  the  only  substitute  for  a  discovery 
under  the  old  practice.  To  contend  that  an  adverse  party  is 
not,  of  necessity,  an  adverse  witness,  and  ought  not  to  be  treated 
as  such  on  his  examination,  involves  an  absurdity,  too  great  to 
be  seriously  contended  for.  On  this  account,  probably,  there  is 
no  specific  decision,  directly  in  point,  upon  the  subject;  but,  in 
examinations  of  this  nature,  the  principle  is,  it  may  safely  be 
said,  universally  admitted.  The  point  was  expressly  ruled  by 
Hoffman,  J.,  on  the  examination  of  the  defendant  in  Stalker  v. 
Gaunt,  before  noticed,  though  the  decision,  being  interlocutory 
in  its  nature,  and  having  been  submitted  to  as  soon  as  made, 
has  never,  of  course,  been  reported. 

Right  of  adverse  Party,  examined,  to  testify  in  his  ovm  behalf  ~\ 
— The  following  provisions  are  made  by  sec.  395,  respecting 
the  conduct  of  the  examination,  and  the  rights  of  the  adverse 
parties  to  testify,  each  in  his  own  behalf,  under  certain  circum- 
stances : 

§  395.  A  party  examined  by  an  adverse  party,  as  in  this  chapter 
provided,  may  be  examined  on  his  own  behalf,  in  respect  to  any  matter 
pertinent  to  the  issue.  But,  if  lie  testify  to  any  new  matter,  not  respon- 
sive to  the  inquiries  put  to  him  by  the  adverse  party,  or  necessary  to 
explain  or  qualify  his  answers  thereto,  or  discharge,  when  his  answers 
would  charge  himself,  such  adverse  party  may  offer  himself  as  a  witness 
on  hi;  own  behalf,  in  resnect  to  such  new  matter,  and  shall  be  so 
received. 

In  Myers  v.  McCarthy,  2  Sandf.  899,  it  was  held  that  where  a 
plaintiff,  bo  examined,  testifies  to  new  matter,  in  answer  to  a 
question  put  to  him  by  the  court,  the  defendant  is  equally 
entitled  t<>  tender  his  own  evidence,  in  respect  to  such  new 
matter. 

Tin:  effect  of  <-\  idenro,  so  given  is,  however,  open  to  all  proper 
comments,  arising  out  of  the  peculiar  position  of  the  party  who 
gives  if.  Tin-  court  and  jury  are  not  bound  to  believe  the 
party  so  testifying,  and   to  decide  according  to  his  testimony. 


EXAMINATION  OF  PARTIES.  (J35 

It  was  the  intention  of  the  Code,  in  giving  these  powers,  to 
confer  a  wide  discretion,  as  to  the  credit  to  be  given  to  this 
description  of  evidence;  and  the  rule,  as  now  established,  per- 
mits the  court  and  jury  to  believe  that  part  of  an  admission, 
which  charges  the  party  who  makes  it,  and  to  disbelieve  that 
part  which  discharges,  where  the  latter  is  improbable  on  its 
face,  or  is  discredited  by  the  other  testimony.  Roberts  v.  Gee, 
15  Barb.  449. 

Examination  of  Parties  interested?^ — The  following  provision 
is  made  by  section  396,  as  regards  parties  interested  in  the 
action : 

§  39G.  A  person  for  whc-e  immediate  benefit  the  action  is  piosecuted 
or  defended,  though  not  a  party  to  the  action,  may  be  examined  as  a 
witness,  in  the  same  manner,  and  subject  to  the  same  rules  of  examina- 
tion, as  if  he  were  named  as  a  party. 

A  party  may  also  be  examined  on  behalf  of  his  co-plaintiff 
or  co-defendant,  under  certain  restrictions,  under  sec.  897,  as 
cited  in  the  next  chapter. 

It  was  held,  under  the  Code  of  1848,  that  co-defendants  could 
not  be  examined  by  each  other,  without  a  special  order,  as  pro- 
vided by  No.  63  of  the  late  Supreme  Court  Rules,  in  equity. 
Roberts  v.  Thompson,  1  C.  R  113;  Taylor  v.  Mairs,  1  C.  R.  123. 
Under  the  present  provisions,  there  seems  to  be  no  distinction 
to  be  drawn  between  this  case,  and  that  of  a  party  adversely 
examined,  as  regards  the  form  of  the  proceedings.  It  might, 
however,  be  the  more  prudent  course,  to  obtain  an  order  in  all 
cases,  as  before  noticed.  The  provisions  for  enforcing  the 
attendance  of  such  parties,  were  not  in  the  measure  of  1849, 
but  were  inserted  on  the  amendment  of  1851. 

The  examination  of  an  assignor  of  a  chose  in  action,  is  also 
specially  provided  for  by  sec.  399,  as  cited  in  the  next  chapter. 
This  provision  is,  however,  more  peculiarly  applicable  to  an 
examination  upon  the  actual  trial. 

See  this,  and  the  foregoing  subject,  more  fully  considered,  in 
the  succeeding  chapter,  and  the  cases  there  cited. 


§   191.    Refusal  to  testify. 

The   effect   of  a   refusal  to  attend  and  testify,  when  duly 
required,  is  thus  provided  for  by  sec.  394: 


636  EXAMINATION  OF  PARTIES. 

§394.  If  a  party  refuse  to  attend  and  testify,  as  in  the  last  four 
sections  provided,  he  may  be  punished  as  for  a  contempt,  and  his  com- 
plaint, answer,  or  reply,  may  be  stricken  out. 

In  order  to  ground  the  taking  of  an  order,  to  the  effect  of  the 
last  portion  of  this  section,  by  default,  the  original  notice,  or 
order  to  show  cause,  should  clearly  point  out  that  such  an  appli- 
cation will  be  made,  or  the  order  on  default  will  be  refused. 
"Good  reasons  might  be  shown,  why,  even  on  the  disobedience 
of  the  party,  some  other  penalty  than  striking  out  his  defence 
should  be  imposed."  Anderson  v.  Johnson,  above  cited.  It  was 
also  considered,  in  that  case,  that  a  joint  defence  could  not  be 
stricken  out,  on  the  ground  of  such  a  refusal,  on  the  part  of  one 
only  of  such  parties. 

The  prerequisites,  in  relation  to  service,  &c,  in  order  to 
obtain  an  order  of  the  nature  here  provided,  have  been  already 
treated  in  the  previous  section.  See  that  section,  and  the  dif- 
ferent cases,  especially  that  of  Jarvis  v.  Clerk,  there  cited. 

Under  ordinary  circumstances,  the  course  adopted  by  the 
court  will  probably  be  to  punish  the  party  for  a  contempt.  See 
Anderson  v.  Johnson,  and  Taggard  v.  Gardner,  above  noticed. 
In  Bennett  v.  Hughes,  however,  1  C.  E.  4,  it  was  considered  that 
the  court  possessed  no  such  power,  and  that  the  applicant  was 
confined  to  the  remedy  given  by  the  law  of  1847.  This  decision 
was  under  the  Code  of  1848,  and  its  authority  appeared  doubt- 
ful, even  under  that  measure.  Under  the  section,  as  it  now 
stands,  there  can  be  no  doubt  of  the  power  of  the  court  in  this 
respect. 

In  extreme  cases,  however,  and  where  actual  fraud  is  shown, 
or,  where  the  whole  of  the  moving  party's  case  evidently  depends 
upon  the  testimony  of  the  party  sought  to  be  examined,  the 
remedy  of  striking  out  the  pleading  of  that  party  will  be  appro- 
priate, and,  on  a  proper  application,  will  doubtless  be  granted. 
In  Bonesteel  v.  Lynde,  8  How.  228,  affirmed,  8  How.  352,  relief 
of  this  description  was  given,  in  the  analogous  case  of  a  party 
required  to  produce,  <>n  a  suIj/hi'iki  duces  tecum,  a  document  on 
which  bis  adversary's  case  rested,  and  which  he  had  fraudulently 
obtained;  and  the  same  principle  would  necessarily  govern,  in 
the  event  of  a  refusal  to  testily,  involving  similar  consequences. 


RULES   OF  EVIDENCE.  637 

CHAPTER    VIII. 

OF  THE  RULES  OF  EVIDENCE,  AS  AFFECTED  BY  THE  CODE. 


§  192.   General  Outline  of  Subject — Statutory  Provisions. 

To  enter  into  any  examination  of  the  law  of  evidence  in  ge- 
neral, would  clearly  be  beyond  the  scope  of  the  present  work. 
The  following  observations  will,  therefore,  be  confined  to  the 
provisions  made  by  the  Code  upon  that  subject,  and  to  the  de- 
cisions bearing  upon  those  provisions,  without  any  attempt  at 
its  more  extended  consideration. 

The  provisions  of  the  Code,  in  the  above  respects,  are  as  fol- 
lows: 

By  sec.  397,  it  is  provided  as  under,  in  relation  to  the  exami- 
nation of  co-plaintiffs  or  co-defendants  : 

§  337.  A  p^rty  may  be  examined  on  behalf  of  his  co-plaintiff,  or  of 
a  co  defendant,  as  to  any  matter  in  which  he  is  not  jointly  interested  or 
liable  with  sucb  co-plaintiff  or  co-defendant,  and  as  to  which  a  separate, 
and  not  joint  verdict  or  judgment  can  be  rendered.  And  he  may  be 
compelled  to  attend,  in  the  same  manner  as  at  the  instance  of  an  adverse 
party,  but  the  examination  thus  taken  shall  not  be  used  in  the  behalf  of 
the  party  examined.  And  whenever,  in  the  cases  mentioned  in  sec- 
tions three  hundred  and  ninety  and  three  hundred  and  ninety-one,  one 
of  the  several  plaintiffs  or  defendants,  who  are  joint  contractors,  or  are 
united  in  interest,  is  examined  by  the  adverse  party,  the  other  of  such 
plaintiffs  or  defendants  may  offer  himself  as  a  witness  to  the  same  cause 
of  action  or  defence,  and  shall  be  so  received. 

The  following  provisions  are  made  by  sees.  398  and  399,  in 
relation  to  witnesses  in  general : 

§  398.  No  person  offered  as  a  witness,  shall  be  excluded  by  reason 
of  his  interest  in  the  event  of  the  action. 

§  399.  The  last  section  shall  not  apply  to  a  party  to  the  action,  nor 
to  any  person  for  whose  immediate  benefit  it  is  prosecuted  or  defended. 
When  an  assignor  of  a  thing  in  action  or  contract  is  examined  as  a  wit- 
ness, on  behalf  of  any  person  deriving  title  through  or  from  him,  the 


638  RULES  OF  EVIDENCE. 

adverse  party  may  offer  himself  as  a  witness  to  the  same  matter,  in  his 
own  behalf,  and  shall  be  so  received.  But  such  assignor  shall  not  be 
admitted  to  be  examined,  in  behalf  of  any  person  deriving  title  through 
or  from  him,  against  an  assignee,  or  an  executor  or  administrator,  unless 
the  other  party  to  such  contract  or  thing  in  action,  whom  the  defend- 
ant or  plaintiff  represents,  is  living,  and  his  testimony  can  be  procured 
for  such  examination,  nor  unless  at  least  ten  days'  notice  of  such  in- 
tended examination  of  the  assignor,  specifying  the  points  upon  which 
he  is  intended  to  be  examined,  shall  be  given  in  writing  to  the  adverse 
party. 

An  analogous  reform  to  the  above  has  already  been  accom- 
plished in  England,  by  the  Act  6  and  7  Vict.  c.  85,  from  which 
measure,  the  two  last  sections,  as  they  stood  before  the  last 
amendments,  were  taken  almost  verbatim.  A  collection  of  Eng- 
lish decisions  upon  the  subject,  will  be  found  at  1  C.  E,  55. 

The  more  convenient  mode  of  treating  the  subject  proposed, 
will  be  to  consider,  in  the  first  place,  the  cases  bearing  upon 
the  examination  of  parties  as  such,  and,  in  the  second,  those  in 
relation  to  witnesses  in  general;  although  the  two  subjects  are 
necessarily  dependent  upon  each  other,  and  many  of  the  author- 
ities upon  either  subject  have  a  double  bearing  upon  both. 


§  193.  Evidence  of  Parties*  as  such. 

Of  Co-plaintiffs  and  Co-defendants,  how  far  admissible — Test  of 
admissibility.'] — The  law  on  this  subject  is  now  clearly  defined 
by  sec.  397,  as  above  cited.  Where  parties  sue,  or  are  sued, 
simply  and  exclusively  as  joint  debtors  or  joint  contractors, 
their  evidence  is  clearly  inadmissible,  to  charge  or  discbarge 
other  parties  in  the  same  interest.  Where  the  right  or  liability 
La  joint  and  several,  the  power  or  propriety  of  a  several  judg- 
ment being  entered,  will  form  the  criterion  of  admissibility 
or  non-admissibility.  The  cases  bearing  on  this  subject,  both 
before  and  after  the  amendment  of  1851,  which  defined  the  law, 
as  above,  will  be  noticed.  On  examining  these  cases,  a  very 
material  distinction  will  be  perceived,  between  actions  on  con- 
tracts, and  those  sounding  in  tort.  In  the  latter,  the  admissi- 
bility of  the  evidence  of  CO-defendantS  may  be  looked  upon  as 
the  general  rule;  in  the  former,  it  rather  constitutes  the  excep- 
tion.    The  analogous  question,  as  to  the  evidence  of  interested 


RULES  OF  EVIDENCE.  639 

persons,  not  actual  parties  to  the  action,  will  be  entered  upon 
in  the  next  section. 

Under  the  Codes  of  1848  and  1849,  the  extent  to  which  the 
evidence  of  co-plaintiffs  and  co-defendants  might  be  made  use 
of,  under  the  powers  conferred  by  sec.  397,  became  the  subject 
of  long  and  doubtful  discussion,  and  the  point  remained  to  a 
great  degree  unsettled,  until  provided  for  by  the  recent  amend- 
ments in  that  section,  although  a  result,  in  accordance  with  those 
amendments,  was  in  process  of  being  arrived  at. 

In  Merrifield  v.  Cooler/,  4  How.  272 ;  and  The  Mechanics  and 
Farmers1  Bank  v.  Wilbur,  2  C.  E.  33,  the  principle  now  ex- 
pressly adopted,  i.  e.,  that  joint  contractors  or  joint  debtors  can- 
not be  admitted  to  testify  on  behalf  of  each  other,  and  that  the 
propriety  or  non-propriety  of  a  several  judgment  being  entered, 
is  the  proper  test  by  which  the  admissibility  of  parties  offered 
as  witnesses  is  to  be  tried,  was  distinctly  laid  down. 

In  Henry  v.  Henry,  8  Barb.  588,  where  a  judgment  confessed 
by  fraud  was  sought  to  be  set  aside,  and're-payment  of  moneys 
received  under  it  obtained,  as  against  the  confessee ;  the  evi- 
dence of  the  party  who  confessed  such  judgment  was  rejected, 
on  the  ground  of  his  having  an  interest  in  having  the  amount 
sought  to  be  recovered,  applied  in  extinguishment  of  the  judg- 
ment against  him. 

In  Dodge  v.  Averill,  5  How.  8,  it  was  held  that,  in  an  action 
before  the  Code,  a  defendant  in  tort,  upon  whom  process  had 
not  been  served,  could  not  be  examined  on  behalf  of  his  co- 
defendant.  Section  399  excludes  him,  said  the  learned  judge, 
as  being  a  party  to  the  action,  and  also  interested. 

In  Thompson  v.  Blanchard,  however,  4  Comst.  403,  where 
one  defendant  in  trover  had  pleaded,  and  the  other  suffered 
judgment  by  default,  the  latter  was  held  to  be  a  competent  wit- 
ness against  his  co-defendant. 

Of  course,  the  authority  of  the  latter  decision  is  dominant. 
A  like  conclusion  is  come  to  in  Robinson  v.  Frost,  14  Barb.  536, 
where,  in  an  action  in  tort,  against  two  defendants,  it  was  held 
that  one  of  them,  who  had  not  been  served,  was  no  longer  a 
party,  and  was  therefore  a  competent  witness  for  either  side ; 
and,  on  the  same  ground,  it  was  held  that  the  examination  of  a 
defendant  so  situated,  did  not  authorize  the  examination  of  a 
co-plaintiff,  on  behalf  of  the  plaintiffs,  under  sec.  395.  See  like- 
wise Leach  v.  Kelsey,  7  Barb.  466,  below  cited. 


640  RULES   OF  EVIDENCE. 

The  converse  of  the  foregoing  proposition,  i.  e.,  that  the  sepa- 
rate acts  of  individual  defendants  in  tort,  ought  not  to  be  ad- 
mitted in  evidence,  to  charge  defendants  not  present,  in  the 
absence  of  any  proof  of  conspiracy,  is  held  in  Carpenter  v. 
Sheldon,  5  Sanclf.  77. 

In  Parsons  v.  Pierce,  3  C.  E.  177,  8  Barb.  655,  it  was  held 
that,  in  actions  of  tort,  since  the  Code,  a  defendant  might  be 
called  as  a  witness  on  behalf  of  his  co-defendant,  but  his  testi- 
mony was,  in  that  case,  to  be  confined  to  facts  to  go  in  total 
exoneration  of  the  party  calling  him,  and  he  was  not  to  be 
allowed  to  testify  on  the  question  of  damages,  in  reducing  which 
he  had  an  interest.  The  decision  was  that  of  a  majority  at 
general  term,  Shankland,  0.  J.,  dissenting  as  to  the  exclusion 
of  the  testimony  of  the  particular  witness  there  in  question,  but 
not  on  general  grounds.  In  the  course  of  his  opinion,  in  which 
the  law  on  the  subject  is  elaborately  examined,  that  learned 
judge  lays  down  the  following  general  principle:  "Upon  the 
fullest  consideration,  I  have  no  doubt  that,  in  actions  com- 
menced since  the  Code,  a  plaintiff  or  defendant  may,  in  all 
cases,  call  their  fellow-plaintiff  or  defendant  to  testify  to  all 
questions  pertinent  to  the  cause,  and  that  judgment  may  be 
entered  in  accordance  with  the  facts,  in  every  diversity  of  form, 
as  was  formerly  done  by  decrees  in  the  Court  of  Chancery." 

In  Munson  v.  liegeman,  10  Barb.  112,  reported  as  Munson 
v.  JFagerman,  5  How.  223,  it  was  decided  that  one  of  two  de- 
fendants charged  with  a  joint  offence,  could  not  be  a  witness 
for  the  other.  The  first  clause  of  sec.  397  was  intended  as  a 
substitute  for  the  old  rule  in  chancery  on  the  subject,  under 
which,  co-defendants  in  the  same  interest  could  not  be  examined 
for  each  other.  A  similar  view  appears  to  have  been  taken  by 
the  New  York  Common  Picas,  in  a  case  of  Johnson  v.  Wilson, 
referred  to  in  1  C.  R  (N.  S.)  p.  40,  in  note. 

The  decision  in  }funson  v.  liegeman,  has,  however,  been  re- 
versed by  the  Court  of  Appeals,  12th  April,  1S53,  on  the 
ground  that,  as  separate  judgments  might  be  entered  in  such 
cases,  either  defendant  might  avail  himself  of  the  testimony  of 
the  other. 

In  Finch  v.  Cleveland,  LO  Barb.  200,  it  was  held  that,  in  an 
action  of  trover  against  three  defendants,  in  which  the  acquittal 
of  one  did  not  qi  ce  arily  lead  to  the  discharge  of  the  other, 
one  defendant  might  be  examined  for  his  co-defendants,  under 
this  section,  as  it  stood  before  amendment. 


RULES  OF   EVIDENCE.  (541 

In  Lobar  v.  Koplin,  4  Corast.  547,  it  was  held  that  where,  on 
a  trial  for  a  joint  assault,  no  evidence  appeared  against  one  of 
the  parties,  he  was  entitled  to  be  discharged,  for  the  purpose  of 
being  examined  as  a  witness  against  his  co-defendant.  If,  how- 
ever, there  is  any,  even  the  slightest  evidence  against  him,  he 
cannot  be  so,  and  the  case  must  go  all  together  to  the  jury,  his 
evidence  of  course  being  inadmissible  under  such  circumstances. 
In  Selkirk  v.  Waters,  5  How.  296,  1  C.  R  (N.  S.)  35,  the  view 
taken  in  Parsons  v.  Pierce  is  confirmed ;  and  it  was  held,  in  op- 
position to  the  views  of  the  court  below,  in  Munson  v.  liegeman, 
that  a  defendant  may  be  examined  as  a  witness  in  behalf  of  his 
co-defendants,  in  all  cases  where  a  separate  judgment  may  be 
entered  in  favor  of  the  latter,  and  that  such  co-defendant  isr 
therefore,  a  competent  witness  in  all  joint  and  several  actions, 
whether  on  contract  or  on  tort.  He  is  also  a  competent  witness- 
in  joint  actions,  to  prove  any  personal  defence  admitting  of  a 
separate  judgment,  on  behalf  of  his  co-defendant.  In  no  case, 
however,  can  his  evidence  be  received,  on  any  matter  in  the 
action  in  which  he  is  interested,  either  generally,  or  by  way  of 
mitigation  of  damages  for  which  he  is  jointly  liable.  The  evi- 
dence must,  under  any  circumstances  of  this  kind,  be  excluded 
as  irrelevant,  and  the  objection  is  rather  to  the  relevancy  of  the 
evidence,  than  to  the  competency  of  the  witness. 

In  The  Mayor  of  New  York  v.  Price,  4  Sandf.  616,  9  L.  O.  255, 
1  C.  R.  (N.  S.)  85,  the  court  adopted  the  same  principle,  in  hold- 
ing that  obligees,  under  a  jomt  and  several  bond,  might  be 
examined  as  witnesses  for  each  other,  inasmuch  as,  under  sec. 
136,  a  several  judgment  might  be  taken  as  against  any  one  of 
them.  The  same  question  will  be  found  fully  examined  in 
The  People  v.  Cram,  8  How.  151,  in  connection  with  the  pro- 
priety of  a  several  judgment  being  entered,  under  such  circum- 
stances, as  was  there  directed. 

In  The  President  of  the  Mechanics  and  Farmers'1  Bank  v.  Rider 
5  How.  401,  1  C.  R.  (N.  S.)  61,  (an  action  on  a  joint  promissory 
note,  defended  on  the  ground  of  usury,)  the  above  conflicting 
doctrines  were  brought  into  full  play  ;  and  that  held  in  Parsons 
v.  Pierce,  was  confirmed  by  a  majority  of  the  court.  The  fol- 
lowing expressions  are  used  by  Harris,  J.,  in  delivering  the 
opinion  of  the  majority:  "This,  then,  I  understand  to  be  the 
intent  and  import  of  the  397th  section  of  the  Code — any  party 
to  any  action  may  be  examined  as  a  witness  on  behalf  of  any 
41 


g42  RULES  OF  EVIDENCE. 

other  party,  but,  when  examined  on  behalf  of  a  co-plaintiff,  or 
co-defendant,  his  testimony  is  not  to  have  the  same  general 
effect  as  other  testimony  in  the  cause,  but  is  to  be  applicable 
only  to  the  issue  between  the  party  on  whose  behalf  he  is 
examined,  and  the  adverse  party.  Such  a  witness  may  be  ex- 
cluded on  the  ground  of  interest,  but,  as  his  testimony  cannot 
affect  the  issue  between  him  and  the  adverse  party,  this  objec- 
tion can  only  be  sustained,  when  the  party  offered  as  a  witness 
is  not  only  interested  in  succeeding  himself,  but  also  in  having 
the  party,  by  whom  he  is  offered,  succeed  also.  In  the  ordinary 
action  against  joint  contractors,  like  that  before  us,  the  witness 
has  no  such  interest:  on  the  contrary,  if  he  has  any  interest  at 
all,  it  is  to  increase  the  number  of  those  who  are  to  assist  in  the 
payment  of  the  recovery." 

"  It  has  been  said  that  the  effect  of  this  rule  is  to  allow  seve- 
ral defendants,  by  mutually  becoming  witnesses  for  each  other, 
to  exonerate  each  other  from  liability.  There  is  much  force  in 
this  consideration,  but  it  goes  only  to  the  question  of  credibility ; 
it  cannot  affect  the  competency  of  the  witness."  The  learned 
judge,  after  laying  down  that  such  testimony  ought,  however, 
to  be  received  with  extreme  caution,  held,  in  conclusion,  that 
the  evidence  of  co-defendants,  in  that  action,  had  been  errone- 
ously excluded  on  the  circuit,  and  that  such  testimony  "should 
have  been  received,  and  submitted  to  the  jury,  with  particular 
instructions  as  to  its  legal  effect,  and  proper  cautions  as  to  the 
weight  to  be  attached  to  it;"  and,  this  opinion  being  concurred 
in  by  Watson,  J.,  a  new  trial  was  accordingly  ordered. 

The  above  opinion  was,  however,  dissented  from  by  Parker, 
J.,  as  regards  the  circumstances  of  that  peculiar  case,  though 
the  general  doctrine,  that  every  defendant  is  a  competent  wit; 
ness  for  a  co-defendant,  to  prove  any  defence  personal  to  that 
co-defendant,  and  in  which  the  witness  is  not  interested,  as  laid 
down  by  the  same  judge,  in  Selkirk  v.  Waters,  before  cited,  is 
distinctly  asserted.  The  ground  of  dissent  was,  that,  in  that 
case,  tin-  contracl  was  :i  joint  contract,  on  which  no  several 
judgment  could  properly  he  entered,  and  the  defence  a  joint 
defence,  going  to  the  entire  demand;  and  there  seems  to  be 
irresistible  force  in  that  reasoning,  as  regards  the  particular  de- 
fence there  in  question,  inasmuch  as  usury,  if  proved,  rendered 
the  instrument  sued  on  invalid  and  void  as  against  all  the 
parties,  it  appearing  i"  have  been  jointly  made  and  jointly  dis- 
counted; and,  therefore,  each  defendant  examined,  had  a  dis- 


RULES  OF  EVIDENCE.  643 

tinct  and  positive  interest  in  establishing  that  defence,  because, 
by  doing  so,  he  would  exonerate,  not  merely  his  co-defendant, 
but  himself  also. 

In  Holman  v.Bord,  12  Barb.  336,  1  C.  E.  (N.  S.)  331,  a  de- 
fendant in  an  action  for  a  false  warranty,  was  held  to  be  a  com- 
petent witness  on  behalf  of  his  co-defendant.  The  words 
"interest  in  the  event  of  the  action,"  in  sec.  398,  do  not  mean, 
in  this  connection,  "an  interest  in  any  event  of  the  action,  but 
an  interest  in  the  event,  as  respects  the  party  who  calls  him  as 
witness."  It  was  considered  that,  in  that  case,  the  party  ex- 
amined could  not  be  benefited  by  his  co-defendant's  discharge, 
but  that,  on  the  contrary,  he  might  have  an  interest  the  other 
way,  as,  the  greater  the  number  of  parties  contributing  to  the 
payment  of  the  judgment,  the  better  for  him.  The  witness 
was  accordingly  held  to  be  competent,  on  the  above,  and  also 
on  the  further  ground,  that  the  case  was  one  in  which  a  separate 
judgment  might  be  rendered. 

In  Ladue  v.  Van  Vechten,  8  Barb.  664,  it  was  held  that  the 
competency  or  incompetency  of  parties  to  testify,  will  depend 
upon  their  relation  to  each  other,  by  their  contract,  and  not  on 
that  existing  between  them  as  parties  to  the  same  action.  The 
test  will  be  as  to  whether  or  not  such  parties  may  be  sued 
severally.  If  so,  their  testimony  will  be  competent,  and  they 
will  not  be  disqualified  by  being  joined  as  defendants.  It  was 
also  considered  that,  whenever  an  action  might  be  maintained 
without  joining  a  party,  his  testimony  might  possibly  be  re- 
ceived. An  unreported  decision  of  Blodget  v.  Morris,  to  the 
same  effect,  is  referred  to. in  the  report. 

It  will  be  seen  that  the  law  as  to  the  examination  of  parties 
is  now  distinctl}'-  laid  down  by  section  397,  as  amended,  in  ac- 
cordance with  the  general  spirit  of  the  cases  above  cited,  over- 
ruling, on  the  one  hand,  Munson  v.  Hagerrnan,  and  the  decisions 
of  that  class,  and  the  peculiar  views  of  the  majority  in  the 
Mechanics  and  Farmers''  Bank  v.  Rider,  on  the  other. 

Co-plaintiffs  and  co-defendants  are  now,  as  a  general  rule, 
examinable  in  all  cases,  but  in  no  case  can  their  testimony  be 
taken  where  they  are  jointly  interested,  or  jointly  liable  with 
the  party  who  calls  them.  See  also  Fort  v.  Gooding,  below 
cited.  The  test  by  which  the  admissibility  of  their  evidence 
will  henceforth  be  tried,  will  probably  be  the  measure  of  relief 
sought  by  the  plaintiff,  and  whether  such  relief  be  joint  or  se- 


6£4  RULES  OF  EVIDENCE, 

parate  in  its  nature.  If  he  seek  separate  relief,  he  seeks  it  sub- 
ject to  the  disadvantage  of  the  opposite  parties  being  competent 
witnesses  for  each  other.  If  he  confine  himself  to  the  case 
upon  the  joint  relief,  they  cannot  testify  on  each  other's  behalf. 

Competency  of  Parties,  generally  considered.] — It  was  held  in 
Hollenbech  v.  Van  Valkenburgh,  5  How.  281,  1  C.  K.  (N.  S.)  33, 
that  a  defendant,  in  the  same  interest  as  the  plaintiff,  could  not 
testify  on  his  behalf.  The  disqualification  on  the  ground  of  in- 
terest extends  to  such  a  case,  as  he  is  "a  party  to  the  action," 
(sec.  399,)  though  not,  technically  speaking,  an  adverse  party. 
A  person  who  is  generally  incompetent  to  testify,  may,  how- 
ever, give  evidence  on  points  which  he  has  no  interest  in  estab- 
lishing. The  onus  probandi  in  cases  of  objection  to  testimony 
of  this  description,  lies  upon  the  objector. 

A  plaintiff  is,  it  seems,  a  competent  witness  to  prove  the  loss 
or  destruction  of  an  instrument  sued  on,  but  his  affidavit  to 
that  effect  cannot  be  received.  McMullin  v.  Grannis,  10  L. 
0.57. 

The  testimony  of  a  party  to  the  suit,  between  whom  and  the 
plaintiff  there  was  no  issue,  and  who  had  accordingly  put  in  no 
answer,  was  decided  in  Leach  v.  KeUey,  7  Barb.  466,  to  be  ad- 
missible, as  against  his  co-defendants.  This  seems  clear :  the 
great  doubt  has  been  whether  he  could  testify  for  them,  though 
this  also  seems  to  be  the  case.  See  Robinson  v.  Frost,  14  Barb. 
536,  supra. 

A  party  cannot  be  examined  on  his  own  behalf,  to  prove 
that  he  made  a  contract  on  which  he  is  sued,  as  agent  and  not 
as  principal.  Doughty  v.  Busteed,  3  C.  R.  187.  "It  is  sufficient 
for  us  to  say,"  observes  the  learned  judge,  "that  we  know  of 
no  change  in  the  individual,  because  he  has  different  characters ; 
lie  is  the  same  person  still,  and  has  no  right  to  be  a  witness  in 
all  the  characters  he  sees  fit  to  assume." 

A  defendant  may  testify,  however,  to  prove  that  he  made  a 
purchase  on  behalf  of  his  co-defendant,  and  not  on  his  own  ac- 
count, (iilhrrtw.  An< rill,  If)  Barb.  20. 

A  witness,  otherwise  incompetent,  cannot  be  made  the  re- 
verse by  the  mere  fact  of  being  a  party  to  the  record. 

Thus,  in  Pillow  v.  Bushnell,  1  How.  9,  2  C.  R.  19,  it  was  held 
that  in  an  action  by  husband  and  wife,  the  defendant  cannot 
require  the  wile'  to  testify  as  a  witness.     "I  think  it  is   clear," 


RULES  OF  EVIDENCE.  645 

the  learned  judge  said,  "  that  the  object  of  this  statute  was 
simply  to  remove  the  technical  objection  that  previously  existed, 
under  which  a  person  could  not  be  compelled  to  testify,  because 
he  was  a  party  to  the  record,"  and  that  that  was  the  only  dis- 
qualification, intended  to  be  removed.  This  can  no  longer  be 
objected  ;  "  but,  if  there  be  any  other  disqualification,  it  is  not 
removed  by  the  statute."  "If,"  it  is  said  in  a  subsequent  part 
of  the  opinion,  "the  statute  is  to  be  construed  as  making  every 
party  a  competent  witness  on  the  call  of  the  adverse  party, 
then  it  would  remove  the  disqualification  of  several  classes  of 
persons,  now  incompetent,  such  as  insane  persons,  idiots,  child- 
ren who  do  not  understand  the  moral  obligation  of  an  oath, 
and  others.  This  could  never  have  been  intended."  A  mo- 
tion for  a  new  trial  was  therefore  granted,  on  the  ground  that 
the  court  had  erred  in  receiving  the  wife  as  a  witness. 

The  same  doctrine  is  maintained  in  Erwin  v.  Smaller,  2  Sandf. 
840,  and  Hasbrouck  v.  Vandervoort,  4  Sandf.  596,  9  L.  0.  249, 
1  C.  E.  (N.  S.)  81,  affirmed  by  the  Court  of  Appeals,  31st  De- 
cember, 1853.  In  the  latter,  the  whole  law  upon  the  subject  is 
fully  gone  into,  and  is  summed  up  by  Duer,  J.,  at  the  close  of 
an  able  and  elaborate  opinion,  as  follows  :  "  The  law  which  has 
prevailed  in  this  State,  and  to  which  we  feel  ourselves  bound  to 
adhere,"  is,  "That  husbands  and  wives  are  not  competent  wit- 
nesses for  or  against  each  other,  in  any  suit  in  which  either  is  a 
party,  or  in  which  either  has  a  direct  or  certain  interest."  The 
point  may,  therefore,  be  now  looked  upon  as  settled.  As  to 
the  extent  to  which  the  testimony  of  the  wife  may,  or  may  not 
be  admissible  in  criminal  cases,  see  The  People  v.  Carpenter,  9 
Barb.  580.  In  Arborgast  v.  Arborgast,  9  How.  297,  the  wife 
was  held,  on  similar  principles,  to  be  an  incompetent  witness  to 
prove  the  plaintiff's  case,  for  a  divorce  against  her,  on  the 
ground  of  adultery. 

In  a  suit  concerning  the  wife's  separate  property,  however, 
the  above  disqualification  does  not  exist,  and  the  husband  will 
be  a  competent  witness.  Willis  v.  Underhill,  6  How.  396; 
Hastings  v.  McKinley,  Court  of  Appeals,  7th  October,  1853. 

In  Dobson  v.  Racey,  Court  of  Appeals,  12th  April,  1853,  the 
widow  of  a  deceased  mortgagee  in  possession,  and  who,  pending 
the  suit,  had  released  her  interest  to  her  children,  was  held  to 
be  a  competent  witness  on  their  behalf,  in  a  suit  for  redemption 
by  the  heirs  of  the  mortgagor,  to  show  that  the  latter  had 
released  his  equity  during  his  life;  nor  did  her  liability  to 


Q±Q  RULES  OF  EVIDENCE. 

account  for  rents  received  by  her,  avail  to  exclude  her  testi- 
mony, because  she  was  equally  bound  to  do  so  to  either  party. 

In  Armstrong  v.  McDonald,  10  Barb.  300,  it  was  held  that 
the  father  and  mother  of  a  minor,  the  former  being  plaintiff, 
were  not  competent  witnesses  to  prove  the  legitimacy  of  the 
latter. 

In  Fort  v.  Gooding,  9  Barb.  371,  the  evidence  of  a  co-executor 
was  held  to  be  inadmissible,  on  behalf  of  co-defendants  in  the 
same  capacity.  In  such  a  case,  "all  the  defendants  only  re- 
present the  testator;  no  one  of  them  is  liable  to  the  plaintiff 
unless  all  are,  and  no  evidence  can  be  given  in  the  case,  which 
can  operate  for  or  against  one  of  them,  and  not  the  others.  The 
Code  cannot  apply  to  a  case,  where  a  co-defendant  cannot  give 
any  evidence  but  that  which  must  of  necessity  operate  in  his 
own  favor,  as  well  as  in  favor  of  his  co-defendants." 

Where  a  party  is  called  as  a  witness  on  the  part  of  his  ad- 
versary, he  become  ipso  facto  competent  to  testify  on  his  own 
behalf.  See  this  subject  considered,  and  various  cases  cited,  in 
the  preceding  chapter,  and  also  in  the  succeeding  portions  of 
the  present. 

In  a  case  where  A  and  B  were  alleged  to  be  joint  con- 
tractors, and  A,  being  examined  by  the  plaintiff,  swore  to  such 
being  the  fact,  it  was  held  to  be  competent  for  B  to  give  evi- 
dence on  his  own  behalf,  for  the  purpose  of  contradicting  A. 
Comstock  v.  Doe,  2  C.  R.  140. 

The  examination  of  a  defendant  in  tort,  not  served  with 
process,  does  not,  however,  authorize  the  plaintiff  to  offer  him- 
self as  a  witness.  The  former  is  not  a  party  until  actual  service, 
and  is,  therefore,  a  competent  witness  for  either  side.  Robinson 
v.  Frost,  14  Barb.  536. 

The  testimony  of  a  party,  called  as  a  witness  at  the  trial,  may 
be  contradicted  by  other  witnesses.  Sec.  393  gives  sufficient 
authority  for  that  purpose.     Arrristrong  v.  Clark,  2  0.  R.  143. 

Ef  a  party,  directly  interested  in  favor  of  one,  is  called  and 
examined  by  the  other  of  the  parties  to  the  suit,  the  objection 
to  hie  competency  is  thereby  waived,  and  he  becomes  ipso  facto 
a  general  witness.     Combs  v.  Baieman,  10  Barb.  573. 

§  194.    Evidence  of  Witnesses. 

General  Considerations.  |  The  cases  above  cited  have  reference 
to  the  question  of  the  admissibility  of  the    evidence  of  parties, 


RULES  OF  EVIDENCE.  647 

considered  as  such.  Those  following  are  more  peculiarly  ap- 
plicable to  testimony  in  general,  though,  in  some  instances,  also 
bearing  upon  the  former  subject. 

To  a  certain  degree,  however,  a  portion  of  this  subject  has 
necessarily  been  anticipated  under  the  preceding,  many  of  the 
questions  as  to  interest  in  the  result,  which  go  to  affect  the 
competency  of  a  certain  class  of  witnesses,  being  also  of  peculiar 
application,  with  reference  to  the  evidence  of  parties,  where 
admissible. 

The  grand  criterion  of  admissibility  or  non-admissibility,  is 
interest  in  the  result  of  the  action.  To  exclude  the  testimony 
of  a  witness,  as  such,  that  interest  must  be  direct  and  immediate. 
The  action  must  be  prosecuted  for  his  immediate  benefit,  or  he 
must  be  a  party  to  it.  If  his  interest  in  the  event  is  not  classi- 
fiable under  one  of  these  two  heads,  his  testimony  must  be 
admitted,  however  strong,  in  other  respects,  his  stake  in  the 
result,  or  his,  bias  in  the  matter  may  be.  Of  course,  this  only 
applies  to  the  admissibility  of  his  evidence,  as  evidence.  It 
does  not  deprive  the  adverse  party  of  the  right  to  comment 
upon,  or  to  rebut  it,  when  given,  either  directly,  by  adverse 
testimony,  or,  indirectly,  by  proving  the  bias  under  which  it 
was  given. 

It  would  be  needless  to  cite  in  detail,  a  second  time,  the  cases 
in  the  preceding  section,  in  which  interest  in  the  result  has 
entered  directly  into  the  question  of  the  competency  of  the 
evidence  of  parties,  beyond  a  mere  cursory  reference  to  them,  as 
below.  The  grand  criterion  as  to  the  propriety  or  non-propriety 
of  a  several  judgment,  on  which  the  former  question  mainly 
hinges,  is  of  course  referable  to  the  criterion  of  a  controlling 
interest  in  the  result,  or  the  reverse.  The  radical  principle  is 
the  same,  whether  applied  to  a  part}^  to  the  record,  or  to  a 
person  not  technically  standing  in  that  position.  No  one  can 
testify  directly  in  his  own  behalf,  or  in  support  of  his  own 
direct  interest.  In  support  of  the  interests  of  others,  severable 
from  his  own,  his  testimony  is  competent,  and  this,  whether  to 
the  whole  issue,  or  to  collateral  circumstances ;  his  power  to 
testify  in  the  latter  case,  being  confined  to  those  limits,  within 
which  his  direct  interest  does  not  come  into  play. 

The  test  of  total  interest  in  the  result  will  be  found  specially 
applied,  as  above,  in  Henry  v.  Henry,  Dodge  v.  Averill,  Lobar  v. 
Koplin,  Selkirk  v.  Waters,  Mechanics  and  Farmers1  Bank  v.  Rider, 


648  RULES  OF  EVIDENCE. 

Holman  v.  Dord,  Ladue  v.  Van  Vechten,  and  the  cases  with  refer- 
ence to  the  relation  of  husband  and  wife,  and  parent  and  child. 
That  of  partial  interest,  in  Parsons  v.  Pierce,  Selkirk  v.  Waters, 
and  Hollenbeck  v.  Van  Valkenburgh,  also  below  cited. 

Test  of  Interest,  as  applied  to  Witness.'] — In  Fitch  v.  Bates,  11 
Barb.  471,  the  test  of  interest  in  the  result,  which  will,  or  will 
not  exclude  the  testimony  of  a  witness,  is  laid  down  as  follows: 
Under  the  Code,  if  the  result  of  a  cause  will  directly  and  im- 
mediately affect  any  right  or  interest  of  a  person  proposed  as  a 
witness,  and  adversely,  if  against  the  party  calling  him,  he  is 
inadmissible.  As,  where  the  judgment  per  se  must  necessarily 
create  or  take  away  a  right,  or  enlarge  or  diminish  a  fund,  in 
which  he  has  a  direct  interest,  or  vest  in  him,  or  divest  him  of 
an  estate.  But,  if  the  record  only  furnishes  evidence  for  or 
against  him,  and  the  effect  of  the  recovery  is  not  direct  and 
immediate,  then  the  objection  goes  to  his  credit. 

Special    Cases. 

Attorneys  Agents,  &c] — An  attorney  transacting  business  in 
the  ordinary  form,  is  a  competent  witness;  Little  v.  Keon,  1  C. 
K  4  ;  but,  in  a  case  in  which  his  compensation  is,  by  agreement, 
to  depend  upon  the  result  of  the  action,  it  would  seem  he  is 
not  so. 

Agents  who  had  executed  a  written  contract  in  their  own 
names,  were  held  to  be  competent  witnesses  for  the  plaintiff,  in 
an  action  against  their  principal,  under  the  Code  as  now  amend- 
ed, although  the  necessary  effect  of  their  testimony  would  be  to 
charge  the  defendants,  and  discharge  themselves,  interest  in  the 
matter  being  no  longer  a  ground  of  exclusion.  Stewart  v.  Fenly, 
5  Sandf.  101,  10  L.  O.  40.  Sec,  likewise,  as  to  the  power  of  an 
agent  to  disprove  his  own  liability,  by  fixing  it  on  his  co- 
defendant,  as  principal,  Gilbert  v.  Averill,  15  Barb.  20,  before 
cited. 

1-  dor  and  Purchaser.']  A  purchaser  under  contract  is  incom- 
petent to  give  evidence  in  support  of  his  vendor's  title,  in  an 
ejectment  againstthe  latter.    Stoffordv.  Williams,  12  Barb. 240. 

The  grantor  of  the  realty  is  notj  however,  disqualified  in  an 

action  for  future  rents  of  the  premises  granted,  nor  will  his  evi- 


RULES  OF  EVIDENCE.  649 

dence  entitle  the  adverse  party  to  give  testimony  in  his  own 
behalf.      Van  Wicklen  v.  Paulson,  14  Barb.  654. 

Promissory  Note — Partnership,  <£c.] — Where  an  action  on  a 
promissory  note  was  defended,  on  the  ground  of  a  fraudulent 
transfer  to  the  plaintiff,  and  the  alleged  owner  had  given  notice 
to  the  defendants  not  to  pay,  and  indemnified  them,  it  was  held 
that  such  alleged  owner  was  nevertheless  a  competent  witness. 
"It  would  have  been  necessary,"  the  judge  said,  "for  the  de- 
fendant to  contest  the  suit,  if  Eames" — the  alleged  owner — 
"had  not  indemnified  him.  He  is,  therefore,  the  real  as  well 
as  nominal  defendant,  and  the  indemnity  does  not  substitute 
Eames  as  the  party  in  interest,  to  the  exclusion  of  the  defend- 
ant. Eames  is  unquestionably  interested,  but  that  does  not  dis- 
qualify him,  under  our  new  law."  Farmers'  and  Mechanics' 
Bank  v.  Paddock,  1  C.  R.  81. 

In  James  v.,  Chalmers,  1  C.  R.  (N.  S.)  413,  it  was  held  that  a 
former  holder  of  a  promissory  note,  who  had  transferred  it  with- 
out recourse  or  guaranty,  was  a  competent  witness  for  the 
plaintiff;  but  that  the  declarations  of  such  former  holder,  made 
while  he  stood  in  that  character,  were  not  competent  evidence 
against  the  then  owner,  to  whom  it  had  been  transferred  in  good 
faith. 

In  Niass  v.  Mercer,  15  Barb.  318,  a  joint  endorser,  and  the 
maker  of  a  promissory  note,  loaned  by  the  latter  to  a  third  party, 
who  had  wrongfully  negotiated  it,  and  converted  the  proceeds 
to  his  own  use,  in  consequence  of  which,  the  other  endorser  had 
been  compelled  to  pay  the  amount,  were  both  held  to  be  com- 
petent witnesses  for  the  latter,  in  an  action  brought  by  him, 
against  the  party  who  had  been  guilty  of  that  conversion. 

The  decision  is  grounded  on  the  view  that  the  action  was  not 
prosecuted  for  their  immediate  benefit,  upon  a  just  construction 
of  the  first  clause  of  section  399. 

In  Bump  v.  Van  Orsdale,  11  Barb.  634,  an  intermediate  trans- 
feree of  a  note  payable  to  bearer,  was  held  to  be  a  competent  wit- 
ness for  the  plaintiff,  in  an  action  brought  by  the  last  holder. 
The  allowing  a  judgment  to  be  taken  by  default  against  him, 
will  not  render  a  party  to  a  joint  and  several  promissory  note,  a 
competent  witness  for  his  co-defendants,  on  a  subsequent  trial 
between  them  and  the  plaintiff.  Austin  v.  Fuller,  12  Barb.  360- 
A  similar  view  is  taken  in  Rich  v.  Husson,  4  Sandf.  115,  where 


650  RULES  OF  EVIDENCE. 

it  was  held  that  one  of  two  co-partners,  sued  for  an  alleged 
co-partnership  debt,  who  had  given  his  note  for  that  debt,  was 
not  a  competent  witness  for  the  plaintiff,  though  he  had  suffered 
a  default.  He  was  interested,  in  favor  of  the  plaintiff  against 
the  defendant. 

In  Bean  v.  Canning •,  10  L.  0.  248,  a  partner  in  a  dissolved 
firm,  was  held  a  competent  witness  for  his  former  partners,  in 
an  action  against  them.  Immediate  benefit  is  the  criterion  in 
these  cases,  not  a  mere  interest  in  the  result. 

Insolvents,  Bankrupts,  &c.~\ — In  Fitch  v.  Bates,  11  Barb.  471,  it 
was  held  that  the  assignor  of  property  for  the  benefit  of  credit- 
ors, cannot  be  a  witness  for  his  assignees,  in  a  suit  brought  by 
them,  for  the  recovery  of  a  part  of  that  propert}^.  He  is  inter- 
ested in  the  result. 

An  insolvent  has  been  decided,  in  a  county  court,  to  have  an 
immediate  benefit  in  the  result  of  an  action  brought  by  his 
trustees,  and  must,  therefore,  be  excluded  as  a  witness  therein, 
though  it  did  not  appear  that  any  surplus  was  coming  to  him. 
"  It  is  beneficial  to  him  to  have  his  debts  paid ;  and  whatever 
is  subtracted  from  the  hands  of  his  assignees,  leaves  that 
amount,  for  which  his  future  effects  are  liable."  Hoffman  v. 
Stephens,  2  C.  E.  16.  See,  however,  the  case  of  Davies  v.  Crab- 
tree,  cited  in  a  note,  2  Sandf.  690,  directly  opposed  to  this  de- 
cision. In  Davies  v.  Cram,  4  Sandf.  855,  it  is  also  held,  that  an 
insolvent,  who  has  assigned  his  property,  is  a  competent  wit- 
ness, in  an  action  brought  by  his  assignees,  for  the  benefit  of 
the  estate.  Such  a  suit  is  not  prosecuted  for  his  immediate 
benefit,  within  the  meaning  of  the  Code.  His  interest,  if  any, 
in  the  surplus  of  his  estate,  is  remote  and  contingent. 

A  like  view  is  taken  in  Morse  v.  Cloyes,  11  Barb.  100,  where 
it  is  held,  that  a  bankrupt,  after  his  discharge,  is  a  competent 
witness  for  his  sureties,  in  a  proceeding  to  avoid  their  joint 
note,  on  the  ground  of  usury.  To  exclude  the  bankrupt  in 
such  a  ease,  it  must  be  shown  that  there  will  be  a  surplus  of 
his  estate,  to  which  he  is  entitled.  That  surplus,  and  a  conse- 
quent intere  t  in  the  witness,  will  not  be  presumed. 

If,  however,  it  1";  made  to  appear  that  any  surplus,  however 

small,  will  arise,  ;i  witness,  under  these  eireunistances,  is  clearly 
incompetent.  If  has  been  also  held  by  the  Court  of  Appeals, 
that  a  discharged  bankrupt,  who  has  not  released  his  interest 


RULES  OF  EVIDENCE.  651 

in  the  surplus  of  his  effects,  is  not  a  competent  witness,  in  a 
suit  instituted  by  his  sureties,  to  avoid  a  joint  debt  against  the 
estate.     Morse  v.  Crofoot,  4  Comst.  114. 

There  is,  as  will  be  seen,  considerable  discrepancy  in  the 
above  cases.  The  last  cited  is,  of  course,  the  dominant  author- 
ity, so  far  as  the  principles  there  laid  down  extend.  The  real 
test  seems  to  be,  the  probability  of  a  surplus  or  the  reverse;  if 
there  appear  any  chance  of  the  insolvent  or  bankrupt  deriving 
any  benefit,  however  small,  on  the  ultimate  winding  up  of  his 
affairs,  the  fact  that  such  benefit  is  remote,  and  even  uncertain, 
will  not,  it  would  seem,  affect  the  question  of  his  admissibility. 
He  has  some  direct  and  personal  interest  in  the  event  of  the 
action,  and  it  is  for  his  immediate  benefit,  that  that  interest 
should  be  ascertained  and  provided  for,  however  remote  its 
ultimate  realization  may  be.  Where,  on  the  contrary,  the 
estate  is  hopelessly  and  irredeemably  insolvent,  without  the 
chance  of  a  surplus,  it  seems  that  the  doctrine  held  by  the  Su- 
perior Court,  and  in  Morse  v.  Cloyes,  may  fairly  prevail,  to  most, 
at  least,  if  not  to  the  total  extent,  in  which  it  is  there  laid 
down. 

It  is  likewise  held  in  Davies  v.  Gram,  above  referred  to,  that, 
as  a  general  rule,  a  creditor  of  the  insolvent  debtor  is  also  a 
competent  witness,  though  it  is  possible  there  may  be  some  ex- 
ceptions, as  where  there  is  but  a  single  creditor,  who  would  be 
entitled  to  the  whole  proceeds  of  the  recovery,  and  where  the 
subject-matter  in  controversy  involves  the  whole  of  the  assigned 
estate.  The  objection  goes  to  the  credibility  of  the  witness, 
rather  than  to  his  competency.  It  is  true  he  has  an  interest  in 
the  result,  but  he  has  not  such  an  immediate  benefit  as  to  dis- 
qualify him.  The  case  seems  to  present  several  features  of 
analogy  with  those  next  considered. 

Stockholders,  Corporators,  &c.~\ — A  stockholder  in  a  bank  was 
held  not  to  be  a  competent  witness,  in  an  action  brought  by  that 
bank  against  a  third  party.  As  a  member  of  the  corporation, 
he  was  a  person  for  whose  benefit  it  was  prosecuted.  The 
President  of  the  Bank  of  Ithaca  v.  Bean,  7  L.  O.  225;  1  C.  R.  133. 
The  witness  in  that  case  was  the  president  himself,  and,  there- 
fore, by  name,  a  party  to  the  action;  but  the  decision  is  not 
grounded  on  this  fact,  but  on  the  doctrine,  as  there  held,  in 
relation  to  stockholders  in  general. 


652  RULES  OF  EVIDENCE. 

In  The  Washington  Bank  of  Westerly  v.  Palmer,  however,  2 
Sandf.  686,  8  L.  O.  92,  a  directly  contrary  opinion  to  that  in  the 
last  case  was  pronounced.  It  was  there  held  that  a  stockholder 
is  neither  a  party  to  the  suit,  nor  a  person  for  whose  immediate 
benefit  it  was  prosecuted,  and  the  case  last  cited  is  expressly 
referred  to,  and  dissented  from.  See  also  Note,  2  Sandf.  p.  690, 
where  it  is  stated  to  have  been  decided,  that  the  assignor,  in 
a  voluntary  general  assignment  for  the  benefit  of  creditors, 
was  a  competent  witness  in  a  suit  brought  by  his  assignees, 
overruling  Hoffman  v.  Stephens,  before  cited. 

The  principles  laid  down  in  The  Washington  Bank  of  Westerly 
v.  Palmer,  as  above,  were  still  further  extended  in  The  Bank 
of  Charleston  v.  Emeric,  2  Sandf.  718,  where  a  co-defendant, 
primarily  liable  for  the  debt  claimed,  was  decided  to  be  a  com- 
petent witness.  The  court,  in  pronouncing  their  opinion,  state 
s>b  follows:  "That  section  [399]  applies  only  to  a  person,  into 
whose  hands  the  money  collected  in  the  suit  will  necessarily 
go,  when  it  is  received,  or  who  might  take  it  from  the  sheriff 
or  the  attorney,  as  his  own.  It  does  not  apply,  where  the  money 
cannot  immediately,  though  it  may  ultimately,  go  into  his 
hands,  as  in  the  case  of  a  stockholder,  in  a  suit  brought  by  a 
corporation:"  and,  in  The  New  York  and  Erie  Railroad  Company 
v.  Cook,  2  Sandf.  732,  an  objection  having  been  taken  to  the 
testimony  of  a  stockholder,  Oakley,  C.  J.,  in  delivering  the 
judgment  of  the  court,  at  general  term,  said:  "We  have  no 
doubt  that  Mr.  Ketchum" — whose  testimony  was  objected  to 
on  the  above  ground — "was  a  competent  witness,  under  the 
recent  provisions  of  law  on  the  subject." 

The  point  has  since  been  effectually  settled,  and  the  doctrine 
established,  that  a  stockholder  or  corporator,  as  such,  is  not  a 
party  for  whose  immediate  benefit  the  suit  is  prosecuted  or 
defended,  and  that  he  is,  therefore,  under  the  Code,  a  compe- 
tent witness  for  the  corporation ;  by  the  subsequent  cases  of. 
The  Bank  of  Lansingburgh  v.  McKie,  7  IIo\\r.  360;  Conro  v. 
/'nrt  Henry  Iron  Company,  12  ISarb.  27,  (p.  61;)  and  Montgomery 
County  Bank  \.  Marsh,  11  Barb,  'if';  affirmed  by  the  Court  of 
Appeals,  80th  December,  L852.  Sec,  likewise,  Hamilton  and 
I)  .in  ville  Plank  />'""</  Company  v.  Rice,  3  How.  -101,  1  C.  11. 
L08,  7L.  0.  L80,  7  Barb.  L57. 

In  Pack  v.  The  Mayor,  &c.\  of  New  York,  3  Cornst.  489,  it  was 
decided  by  the  Court  of  Appeals,  that  an  alderman  of  the  city  of 


RULES  OF  EVIDENCE.  (J53 

New  York  was  a  competent  witness,  in  an  action  on  the  case, 
against  the  Mayor,  Aldermen,  and  Commonalty  of  that  city,  in 
their  corporate  capacity;  reversing  a  decision  of  the  Court  of 
Common  Pleas,  by  which  his  testimony  had  been  rejected.  The 
view  taken  was,  that  the  action  was  not  brought  against  the 
individuals  composing  that  corporation,  but  against  the  corpo- 
ration itself,  as  a  legal  entity  created  by  the  charter.  If  other- 
wise, no  inhabitant  of  the  city  would  be  competent  to  testify. 
The  evidence  was  decided  to  be  admissible,  both  under  the 
Code,  and  under  the  Common  Law. 

Sureties."] — In  a  note  at  3  C.  E.  24,  it  is  stated  to  have  been 
decided  by  Oakley,  C.  J.,  that,  in  an  action  brought  by  trustees 
on  an  attachment  under  the  Eevised  Statutes,  the  attaching 
creditor  is  not  a  competent  witness,  on  the  ground  that  he  is  a 
person,  for  whose  immediate  benefit  the  action  is  prosecuted. 

This  conclusion  is  supported  by  Mitchell  v.  Weed,  6  IIow.  128, 
l.C.  E.  (N.  S.)  196,  where  it  was  held,  that,  when  such  an  attach- 
ment had  been  discharged  on  the  defendant's  bond,  the  latter 
was  not  a  competent  witness  in  an  action  against  his  sureties, 
and  could  not  be  made  so,  by  a  release  from  the  defendants. 
Thompson  v.  Dicherson,  12  Barb.  108,  1  C.  E.  (N.  S.)  213,  is 
authority  to  the  same  effect. 

In  Gatlin  v.  Hansen,  1  Duer,  309,  it  was  held  that  a  witness 
who,  for  a  valid  consideration,  had  agreed  to  indemnify  the 
defendant  by  whom  he  is  called,  is  incompetent,  under  the 
Code,  as  a  person  for  whose  immediate  benefit  the  action  is 
defended ;  the  general  question  being  there  fully  discussed,  in 
the  opinions  of  the  judges,  delivered  seriatim. 

The  correctness  of  this  view  is  established  by  the  Court  of 
Appeals,  in  Howland  v.  Willett,  31st  December,  1853,  which 
holds  that  a  party  who  has  indemnified  the  sheriff,  for  taking 
property,  by  virtue  of  an  execution,  is  not  a  competent  witness 
for  the  latter,  in  a  suit  founded  on  such  taking.  He  is  a  person 
for  whose  immediate  benefit  the  suit  is  defended. 

Executors,  Legatees,  &c.~\ — The  evidence  of  a  co-executor  is 
inadmissible,  on  behalf  of  defendants  standing  in  the  same 
capacity;  they  are  essentially  in  the  same  interest.  See  Fort  v. 
Gooding,  9  Barb.  371,  above  cited.  In  Mesich  v.  Mesich,  7  Barb. 
120,  the  evidence  of  an  unpaid  legatee,  who  had  appeared  by 


65 4'  RULES  OF  EVIDENCE. 

counsel,  and  contested  the  executors'  accounts,  in  proceedings 
before  the  surrogate,  was  held  to  be  incompetent,  though,  at 
the  time  his  evidence  was  tendered,  he  had  assigned  his  legacy. 
The  evidence,  however,  of  a  legatee,  who  has  been  paid  his 
legacy,  and  given  a  receipt  to  the  executors,  is  admissible. 
Mesick  v.  Mesick,  above  cited.  The  same  was  held  with  refer- 
ence to  the  testimony  of  a  residuary  legatee,  in  an  action  for 
work  and  labor,  brought  against  the  estate ;  Weston  v.  Hatch, 
6  How.  443;  and  likewise,  as  to  the  widow  of  an  intestate,  in  a 
similar  proceeding;  Megary  v.  Funtis,  5  Sandf.  376.  Neither 
were  entitled  to  an  immediate  benefit,  sufficient  to  work  their 
disqualification. 

Assignor  of  Chose  in  Action.'] — It  will  be  observed,  that  sec. 
399,  as  now  amended,  makes  express  provision  for  the  examina- 
tion of  a  party  standing  in  this  capacity,  concerning  which,  the 
Codes  of  1848  and  1849  were  silent,  in  relation  to  the  mode  of 
examination,  and  the  notice  requisite  to  be  given.  In  order  to 
enable  the  examination  of  a  party  standing  in  this  capacity,  on 
behalf  of  the  party  deriving  title  through  him,  a  peculiar  form 
of  proceeding  is  necessary,  under  s.  399,  as  above  cited.  A 
previous  notice,  in  writing,  of,  at  least,  ten  days,  specifying  the 
points  on  which  such  assignor  is  intended  to  be  examined,  must 
be  served,  in  all  cases,  or  his  testimony  cannot  be  taken.  See 
form  of  notice  in  Appendix.  Another  prerequisite  is  essential, 
viz.:  that  the  other  party  to  the  original  contract,  whom  the 
adverse  party  in  the  action  represents,  must  be  living,  and  his 
testimony  in  opposition  must  be  procurable  ;  if  not,  the  evidence 
will  be  wholly  inadmissible.  The  remedy,  therefore,  is  one,  in 
adopting  which,  the  greatest  exactness  in  practice  will  be  requi- 
site, in  complying  with  the  safeguards  to  the  adverse  party,  im- 
■i  as  above,  in  view  of  its  delicacy  and  importance. 

The  provision  as  to  the  ten  days' notice  to  be  given  as  above, 
must  1><-  Btrictly  Gomplied  with,  and  the  points  on  which  the 
jnoT  is  f'>  I*'-  examined,  distinctly  specified,  or  the  evidence 
will  be  excluded.  Falon  v.  Keese,  8  How.  341;  Knickerbocker 
v.  Aid/rich^  7  Eow.  I.  In  Warren  v.  //<hucr,S  How.  419,  it  was 
considered  that  this  provision  was  not  "a  rule  of  evidence," 
and  therefore  not  applicable  to  suits  in  justices' courts.  It  seems 
more  than  doubtful,  whether  it  will  \»-  expedient  to  rely  impli- 
citly "ii  this  la  t  decision,  for  the  present,  at  all  events. 


RULES  OF  EVIDENCE.  (555 

Under  the  Code  of  1849,  it  was  provided  by  sec.  399,  that 
sec.  898  should  not  apply  to  the  case  of  an  assignor  of  a  thing 
in  action,  assigned  for  the  purpose  of  making  him  a  witness. 
At  first  sight,  this  provision,  as  it  then  stood,  seemed  to  ex- 
clude, altogether,  the  evidence  of  a  person  standing  in  that 
capacity.  It  was  held,  however,  under  that  section,  that  the 
evidence  of  a  stockholder,  who  had  assigned  his  stock  over  to 
another  party,  so  as  to  retain  no  interest  in  it,  was  receivable, 
at  all  events,  even  though  such  assignment  had  been  made 
for  the  express  purpose  of  making  him  a  witness.  Hamilton 
and  Deansville  Plank  Road  Company  v.  Rice,  3  How.  401 ;  1  C. 
E.  108  ;  7  L.  0.  139 ;  7  Barb.  157.  Sec.  399  does  not  declare, 
that  the  assignor  of  a  chose  in  action  shall  be  incompetent,  but 
that  sec.  398  shall  not  apply  to  him.  "  The  conclusion  is,  there- 
fore, that,  if  the  assignor,  who  has  assigned  to  become  a  wit- 
ness, still  remains  interested  in  the  event  of  the  suit,  he  shall 
continue  to  be  incompetent,  notwithstanding  the  provisions  of 
the  398th  section.  If  that  section  should  be  applied  to  such  an 
assignor,  he  might  be  a  witness,  though  he  remained  interested 
in  the  event  of  a  suit,  as  in  many  cases  he  does,  notwithstand- 
ing the  assignment.  The  Code  intended  to  exclude  such  as- 
signors, if  interested ;  though  interest,  as  a  general  rule,  would 
not  render  a  witness  incompetent.  Such  an  assignor,  if  divested 
of  his-  legal  interest,  would  have  been  competent,  under  the  old 
law  ;  and  it  is  the  policy  of  the  Code  to  enlarge,  and  not  contract, 
the  rule  of  competency,  as  applied  to  witnesses." 

A  similar  doctrine  to  that  in  the  case  last  cited,  was  acted 
upon  in  Everts  v.  Palmer,  3  C.  B.  51,  7  Barb.  178,  where  the 
holder  of  a  note  had  exchanged  it  for  the  note  of  another 
party,  who  then  sued  upon  it;  under  which  circumstances,  the 
original  holder  was  declared  to  be  a  good  witness,  though  his 
testimony  to  that  effect  appeared  to  be  open  to  some  suspicion 
as  to  the  existence  of  a  secret  understanding. 

The  case  of  such  an  assignor  is  now  expressly  provided  for 
by  statute,  as  above  cited.  The  principle,  however,  that  a  party 
standing  in  such  a  capacity  will  be  equally  disqualified,  unless 
the  assignment  made  by  him  is  clear  and  unconditional,  remains, 
without  doubt,  unshaken.  If  he  retains,  directly  or  indirectly, 
such  an  interest  in  the  result  of  the  action,  as  will  bring  him 
within  the  definition  of  a  person  for  whose  immediate  benefit 
the  suit  is  prosecuted  or  defended,  his  testimony  will  clearly 


656  RULE3   OF  EVIDENCE. 

be  as  open  to  objection,  as  that  of  any  other  party,  standing  in 
the  same  position.  See  this  principle  fully  developed  in  the 
previous  portion  of  this  section,  and  in  several  of  the  cases,  and 
especially  in  Fitch  v.  Bates,  and  Morse  v.  Crofoot,  there  cited. 
The  right  of  the  adverse  party  to  have  his  testimony  secured  in 
all  cases,  where  a  demand  is  transferred,  merely  for  the  purpose 
of  making  the  assignor  a  witness  to  prove  it,  is  clearly  recog- 
nized in  Willis  v.  Underhill,  6  How.  396. 

In  Bump  v.  Van  Orsclale,  11  Barb.  634,  it  was  held,  in  ana- 
logy to  the  foregoing  provisions,  that  the  transfer  of  a  promis- 
sory note  by  delivery,  operated  as  an  assignment,  sufficient  to 
bring  an  intermediate  transferee  within  the  scope  of  these  pro- 
visions, and  to  entitle  the  defendant  to  offer  his  own  evidence, 
where  a  party,  standing  in  that  capacity,  had  been  examined 
on  behalf  of  the  plaintiffs.  In  Van  Wicklen  v.  Paulson,  14  Barb. 
654,  the  grantor  of  land  was  held  not  to  be  an  assignor  of  a 
chose  in  action,  with  reference  to  rents,  not  due  at  the  time  of 
the  grant.  His  testimony  is,  therefore,  that  of  an  ordinary  wit- 
ness, in  a  subsequent  action  by  the  purchaser,  and  will  not  enti- 
tle the  adverse  party  to  offer  himself  as  evidence. 

In  Harris  v.  Bennett,  6  How.  220,  1  C.  K.  (N.  S.)  203,  the 
court  refused  to  allow  the  assignee  of  the  plaintiff's  interest  to 
be  substituted  as  plaintiff,  under  sec.  121,  unless  upon  the  terms 
that  the  then  plaintiff  should  not  be  examined  as  a  witness,  it 
being  evident  that  the  assignment  was  made  for  that  purpose 
only. 

General  Remarks  as  to  Competency  of  Witnesses.^ — The  objec- 
tion to  the  competency  of  a  witness,  on  the  ground  of  interest, 
must  be  taken  at  the  proper  time,  or  it  will  be  considered  as 
waived;  Leach  v.  Kelsey,7  Barb.  466;  where  the  general  term 
refused  to  entertain  such  an  objection,  the  question  not  having 
been  raisi  <1  before  the  referee.  See  likewise  Combs  v.  Batcman, 
10  Barb.  673,  to  the  same  effect. 

1 1,  EoUenbeck  v.  Van  Valkenburgh,  5  How.  281,  1  C.  11.  (N. 
S.)  '■)'■),  it  was  beld,  that  the  disqualification  of  sec.  399  extended 
equally  to  the  ca  le  of  an  adverse  party,  as  to  that  of  one  called 
on  his  own  behalf,  if  he  is  interested  in  the  event  of  the  action. 
He  can,  however,  be  examined  on  formal  points,  in  which  he 
has  no  interest.  In  all  eases  of  objections  of  this  nature,  the 
burden   of  proof  rests  on   the    party   making    them.       "Every 


RULES  OF  EVIDENCE.  657 

person  is  competent  to  be  sworn  as  a  witness,  unless  his  disqua- 
lification is  affirmatively  shown." 

In  Morss  v.  Morss,  11  Barb.  510,  1  C.  R.  (K  S.)  374,  10  L.  0. 
151,  it  was  held,  that  one  of  three  referees  of  the  cause,  was 
not  a  competent  witness,  on  the  trial  before  himself  and  his 
colleagues ;  the  various  authorities  in  analogy  to  that  subject, 
and  in  relation  to  the  evident  incompetency  of  judges,  and  the 
possible  competency  of  jurors,  to  give  evidence  on  questions 
before  them,  being  fully  reviewed  and  considered. 


42 


658  TRIAL,  GENERALLY  CONSIDERED. 


BOOK     IX. 


OF  TRIAL,  AND  CONSEQUENT  PROCEEDINGS  BEFORE 
ENTRY  OF  JUDGMENT. 


CHAPTER   I . 

OF  TRIAL— GENERALLY  CONSIDERED. 


§  195.     General  Incidents  of  Trial. 

The  mode  of  joinder  of  issue,  and  the  preparations  for  bring- 
ing the  cause  forward  for  adjudication,  having  thus  been  con- 
sidered, the  next  subject  is  the  actual  trial  of  that  issue, 
whether  of  law  or  of  fact. 

Statutory  Definition,  &ci] — The  following  definition  of  trial  is 
given  by  sec.  252  of  the  Code,  as  last  amended  : 

8  252.  A  trial  is  the  judicial  examination  of  the  issues  between  the 
parties,  whether  they  be  issues  of  law  or  of  fact. 

In  the  Code  of  1851  this  definition  was  omitted  ;  but  it  is  now 
restored,  as  it  stood  in  the  measure  of  18-19.  A  similar  resto- 
ration has  taken  place  with  reference  to  the  trial  of  issues  of 
law,  which,  by  the  Code  of  1851,  was  taken  from  the  single 
judge,  and  given  to  the  general  term,  unless  by  special  direction 
of  the  court.  The  inconveniences  of  this  change  were  so  ob- 
vious, that  the  Supreme  Court  of  the  First  District,  and  the  New 
York  Common  Pleas,  both  abrogated  it,  in  effect,  by  special 
rules,  amounting  to  a  continuance  of  the  previous  practice;  and 
the  Legislature  has  now  readopted  the  same  view. 

/.   m     joined)  how  triable?] — The  following  are  the  provisions 


TRIAL,  GENERALLY  CONSIDERED.  659 

of  the  Code,  as  contained  in  sees.  253  to  255,  inclusive,  defining 
the  instances  to  which  trial  by  jury,  or  trial  by  the  court,  are 
respectively  peculiarly  applicable: 

§  253.  An  issue  of  law  must  be  tried  by  the  court,  unless  it  be  re- 
ferred, as  provided  in  sections  two  hundred  and  seventy  and  two  hun- 
dred and  seventy-one.  An  issue  of  fact,  in  an  action  for  the  recovery 
of  money  only,  or  of  speci6c  real  or  personal  property,  or  for  a  divorce 
from  the  marriage  contract,  on  the  ground  of  adultery,  must  be  tried  by 
a  jury,  unless  a  jury  trial  be  waived,  as  provided  in  section  two  hun- 
dred and  sixty-six,  or  a  reference  be  ordered,  as  provided  in  sections 
two  hundred  and  seventy  and  two  hundred  and  seventy-one. 

§  254.  Every  other  issue  is  triable  by  the  court,  which,  however, 
may  order  the  whole  issue,  or  any  specific  question  of  fact  involved 
therein,  to  be  tried  by  a  jury  ;  or  may  refer  it,  as  provided  in  sections 
270  and  271. 

§  255.  All  issues  of  fact,  triable  by  a  jury  or  by  the  court,  must  be 
tried  before  a  single  judge.  Issues  of  fact,  in  the  Supreme  Court,  must 
be  tried  at  a  Circuit  Court,  when  the  trial  is  by  jury;  otherwise,  at  a 
Circuit  Couit  or  special  term,  as  the  court  may  by  its  rules  prescribe. 
Issues  of  law  must  be  tried  at  a  Circuit  Court  or  a  special  term,  and 
shall,  unless  the  court  otherwise  direct,  have  preference  on  the  ca- 
lendar. 

Certain  descriptions  of  cases  must,  as  above  provided,  be 
tried  by  a  jury,  unless  such  trial  be  waived;  but  every  other 
issue  is  made  "triable"  by  the  court.  The  exact  force  of  this 
word,  "  triable,"  and  whether  it  imports  a  necessity  or  an  op- 
tion, has  been  doubted. 

In  Wood  v.  Harrison,  2  Sandf.  665,  a  controversy,  strictly 
equitable  in  its  nature,  was  tried  by  a  jury,  on  issues  specially 
prepared  by  the  judge,  and  submitted  to  them  for  their  de- 
cision ;  but  the  general  tendency  of  the  decided  cases  unques- 
tionably runs  in  favor  of  all  controversies  of  an  equitable 
nature  being  tried  by  the  court  alone,  without  a  jury.  The 
practical  impossibility  of  complicated  equitable  questions  being 
adequately  dealt  with  by  the  latter,  is  well  demonstrated  in 
Wooden  v.  Waffle,  6  How.  145,  1  C.  R.  (N.  S.)  392. 

Under  the  recent  amendments  in  sec.  258,  "a  separate  trial 
between  the  plaintiff  and  any  of  several  defendants,  may  now 
be  allowed  by  the  court,  whenever,  in  its  opinion,  justice  will 
be  thereby  promoted."  The  limits  of  this  newly-given  author- 
ity remain  to  be  settled  by  judicial  construction.     Numerous 


060  TRIAL,  GENERALLY  CONSIDERED. 

cases  might  be  adduced,  in  which,  its  exercise  is  likely  to  be 
beneficial. 

Issue  of  Law.] — The  issue  of  law  is,  from  its  very  nature, 
triable  by  the  court  alone,  without  the  intervention  of  a  jury. 
See  sec.  252.  It  may,  however,  be  referred,  by  consent,  under 
sec.  270.  The  provision  in  sec.  252  runs,  that  it  may  be  refer- 
red, as  provided  by  sees.  270  and  271;  but  this  is  a  manifest 
error  of  the  Legislature,  the  latter  section  being  totally  inap- 
plicable to  such  cases. 

Mixed  Issues.] — In  reference  to  mixed  issues,  those,  i.  e.,  where 
a  demurrable  objection  has  been  raised  by  answer,  owing  to  the 
necessity  of  statements  of  fact  to  make  that  objection  apparent, 
a  question  has  been  raised  in  The  Farmers1  Loan  and  Trust 
Company  v.  Hunt,  1  C.  R.  (N.  S.)  1,  as  to  whether  such  issues 
may  not  properly  be  looked  upon  in  the  light  of  issues  of  law, 
even  when  the  facts  in  question  are  controverted,  so  far  as  to 
entitle  the  parties  to  bring  them  to  an  early  decision,  without 
waiting  for  the  trial  of  the  issues  of  fact ;  and  a  reference,  ac- 
cording to  the  old  chancery  practice,  was  suggested  by  the 
court,  as  a  means  of  overcoming  the  difficulty.  The  case  hav- 
ing, however,  gone  off  upon  another  point,  that  in  question  was 
not  directly  passed  upon,  and  there  seems  reason  to  doubt  the 
soundness  of  the  conclusion.  The  two  issues  of  law  and  of  fact, 
respectively,  seem,  under  such  circumstances,  to  be  mutually 
dependent  upon  each  other,  and  inseparable  in  their  considera- 
tion. If,  however,  the  facts  on  which  the  objection  is  grounded 
be,  on  the  contrary,  admitted,  either  directly  or  by  non-denial, 
it  might  then  well  be  contended,  that,  by  such  admission,  a  pure 
issue  of  law  has  been  practically  raised,  and  should  be  tried  ac- 
cordingly. 

The  provision  in  sec.  251,  that  where  issues  both  of  law  and 
of  fact  are  joined  by  the  same  pleading,  the  former  must  be 
first  tried,  unless  the  court  shall  otherwise  direct,  seems  clearly 
inapplicable  to  this  peculiar  description  of  trial.  It  refers  to 
those  cases  in  which  the  issues  so  joined  are  severable,  and  not 
dependent,  the  one  upon  the  other,  as  in  this  peculiar  form. 
See  this  subject  heretofore  considered,  and  cases  cited,  under  the 
head  of  [sBUe. 

lames  of  Fact.]    -We  now  proceed  to  the  trial  of  the  issue  of 


TRIAL,  GENERALLY  CONSIDERED.  QQ{ 

fact,  either  pure  or  mixed,  for  which   three  modes  are  open. 
Such  issue  may  be  tried, 

1.  By  a  jury. 

2.  By  the  court. 

3.  By  referees:  which  modes  of  trial  will  be  considered 
seriatim.  The  trial  by  referees,  unless  such  reference  be  made 
by  consent,  is  only  applicable  to  those  cases  in  which  the  exa- 
mination of  a  long  account  is  involved.  See  Code,  sec.  270. 
Trial  by  the  court,  or  by  a  jury,  are  the  courses  more  usual 
in  practice. 

Of  these,  trial  by  jury  may  be  said  to  form  the  rule,  and  trial 
by  the  court  the  exception,  except  in  cases  heretofore  cogni- 
zable in  equity,  in  which,  the  reverse  of  this  rule  holds  good. 
Trial  by  jury,  may,  however,  be  waived,  by  consent  of  the  par- 
ties, or  by  failure  to  appear.     See  sec.  266. 

General  Remark.] — The  peculiar  incidents  of  each  of  these 
several  forms  of  trial  will  be  considered,  each  under  its  proper 
head,  in  the  succeeding  chapters.  There  are,  however,  several 
considerations  applicable  to  trial  in  general,  without  reference 
to  the  peculiar  form  in  which  it  is  conducted,  and  which  will 
be  treated  in  the  succeeding  portions  of  the  present  chapter.  * 


§  196.  Amendment  or  Disregard  of  Formal  Objections. 

Statutory  Provisions^ — The  first  subject  in  which  the  Code 
makes  any  definite  alteration,  in  relation  to  the  conduct  of  a 
trial,  is  with  reference  to  amendments  on  points  of  form,  during 
its  progress.  The  enactments  on  this  subject  are  contained  in 
sections  169,  170,  171,  and  176,  forming  a  portion  of  the  chap- 
ter as  to  amendments  in  pleading,  though  clearly  referable  to 
amendments  upon  the  trial,  and-  to  those  alone.  These  provi- 
sions run  as  follows : 

§  169.  No  variance  between  the  allegation  in  a  pleading  and  the 
proof,  shall  be  deemed  material,  unless  it  have  actually  misled  the  ad- 
verse party,  to  his  prejudice,  in  maintaining  his  action  or  defence,  upon 
the  merits.  Whenever  it  shall  be  alleged,  that  a  party  has  been  so 
misled,  that  fact  shall  be  proved  to  the  satisfaction  of  the  court,  and 
in  what  respect  he  has  been  misled ;  and  thereupon  the  court  may 
order  the  pleading  to  be  amended,  upon  such  terms  as  shall  be  just. 

§  170.  Where  the  variance  is  not  material,  as  provided  in  the  last 


(362  •  TRIAL,  GENERALLY  CONSIDERED. 

section,  the  court  may  direct  the  fact  to  be  found  according  to  the  evi- 
dence, or  may  order  an  immediate  amendment,  without  costs. 

§  171.  Where,  however,  the  allegation  of  the  cause  of  action  or  de- 
fence, to  which  the  proof  is  directed,  is  unproved,  not  in  some  particu- 
lar or  particulars  only,  but  in  its  entire  scope  and  meaning,  it  shall  not 
be  deemed  a  case  of  variance  within  the  last  two  sections,  but  a  failure 
of  proof. 

§  176.  The  court  shall,  in  every  stage  of  an  action,  disregard  any 
error  or  defect  in  the  pleadings  or  proceedings,  which  shall  not  affect 
the  substantial  rights  of  the  adverse  party;  and  no  judgment  shall  be 
reversed  or  affected  by  reason  of  such  error  or  defect. 

These  provisions  are,  as  will  be  seen,  equally  applicable  to 
every  species  of  trial,  whether  by  a  jury  or  otherwise,  and  the 
latter  of  them  extends  to  all  proceedings  whatever,  whether  at 
that  or  any  other  stage  of  the  action.  The  present,  however, 
appears  to  be  the  most  convenient  period  for  their  considera- 
tion, and  for  the  citation  of  the  recent  cases  thereon. 

By  the  Kevised  Statutes,  title  V.,  chap.  VII.  of  part  III.,  2 
R.  S.  424  to  426,  extensive  powers  of  amendment  under  similar 
circumstances,  had  already  been  given,  and  those  powers  appear 
to  be  still  subsisting,  in  concurrence  with  those  of  the  Code. 
See,  to  this  effect,  in  Brown  v.  Babcock,  1  C.  R.  66 ;  3  How.  305. 

Section  176  was  held  to  have  no  retrospective  effect,  and  to 
be  confined  solely  to  pleadings  and  proceedings  under  the  Code, 
in  Deifendorf  v.  Elwood,  3  How.  285 ;  1  C.  R.  42  ;  and  Dennis- 
ton  v.  Mudge,  4  Barb.  243.  These  decisions  have  reference, 
however,  to  proceedings  prior  to  the  amendment  of  1851,  and 
to  them  only;  sec.  459,  as  altered  on  that  amendment,  renders 
these  provisions  retrospective  in  all  cases.  See  Pearsoll  v.  Fret- 
zer,  14  Barb.  564. 

.  General  Considerations.'] — The  consideration   of  this  subject 
may  !»«•  divided  into  two  principal  heads,  viz.: 

1.  When  an  objection  to  the  pleadings  will  or  will  not  be 
disregarded  at  the  trial,  involving  tin;  consideration  as  to  what 
will,  or  will  DOt  constitute  :i  fatal  variance. 

2.  When  an  amendment  will  be  directed,  and  whether  nunc 
pro  tunr,  or  by  why  of  postponement  of  immediate  proceedings. 

In  both  oases,  the  adverse  party  must  show,  affirmatively, 
that  he  has  l^ec  actually  misled  to  his  prejudice,  or  his  objec- 
tion, though  admissible,  cannot  be  maintained;  and,  where  he 


TRIAL,  GENERALLY  CONSIDERED.  gg3 

seeks  to  prevent  the  trial  from  proceeding,  under  the  effect  of 
an  amendment  "  nunc  pro  tunc"  he  must  show,  in  addition,  that 
the  amendment,  if  granted  to  his  adversary,  will  involve  the 
necessity  of  more  mature  consideration,  or  the  adduction  of  fur- 
ther evidence  on  his  part,  to  prevent  a  failure  of  justice. 

The  general  powers  of  the  court  in  relation  to  these  provi- 
sions are  thus  broadly  stated  in  Corning  v.  Corning,  1  C.  R.  (N. 
S.)  351,  affirmed  by  the  Court  of  Appeals,  2  Selcl.  97:  "The 
Code  has  made  important  changes  in  the  systen  of  nisi  -prim 
trials.  Under  the  new  system,  the  judge  at  circuit  possesses 
the  same  control  over  the  pleadings,  formerly  exercised  by  the 
Supreme  Court,  after  verdict,  and  before  judgment.  The 
pleadings  may  now,  on  the  trial,  be  conformed  to  the  proof — 
immaterial  allegations  disregarded,  immaterial  evidence  re- 
jected, and  such  judgment  may  be  directed  as  the  facts  and 
the  law  of  the  case  require."  See,  also,  general  principles,  as 
laid  down  in  Fay  v.  Orimsteed,  below  cited. 

Disregard  of  Objections — What  will  or  will  not  constitute  d 
fatal  Variance.] — In  Pearsall  v.  Frazer,  14  Barb.  564,  a  mere 
formal  defect  in  the  pleading  was  disregarded  by  the  court, 
under  sec.  176. 

In  Fox  v.  Hunt,  8  How.  12,  it  is  laid  down  to  be  the  correct 
practice  on  the  circuit,  to  lay  out  of  the  case  all  irrelevant  alle- 
gations, or  immaterial  issues,  and  to  hold  the  parties  to  trial  on 
such  as  are  left. 

In  Harmony  v.  Bingham,  1  Duer,  209,  relief  was  granted 
under  the  foregoing  section,  and  the  decision  of  a  referee,  dis- 
regarding sundry  immaterial  variances,  between  the  pleadings 
and  the  proof,  was  sustained. 

In  Be  Peyster  v.  Wheeler,  1  Sandf.  719,  1  C.  R.  93,  it  was  held 
that  variances,  not  affecting  the  merits,  which  do  not  surprise 
the  adverse  party,  and  on  which  he  ought  not,  in  good  faith,  to 
have  relied,  will  be  disregarded  on  arguments  at  bar,  without 
directing  any  amendment.  If,  however,  the  prevailing  party 
deem  an  amendment  prudent,  he  may  apply  for  leave,  by  mo- 
tion, after  the  argument,  when  the  court  will  allow  it,  on  such 
terms  as  may  be  just.  It  was  further  held,  that,  upon  the  trial 
of  the  cause,  the  court  may,  in  their  discretion,  either  order 
amendments  -in  like  manner,  or  may  disregard  the  variance. 
Where,  however,  the  defect  is  one  involving  an  insufficient 


664  TRIAL,  GENERALLY  CONSIDERED. 

statement  of  facts,  the  court  will  not  disregard  the  objection, 
but  will  direct  an  amendment;  Vanderpool  v.  Tarbox,  7  L.  O. 
150;  in  which  case,  an  amendment  of  that  nature  was  allowed 
without  costs,  the  defect  being  merely  of  a  technical  description. 

In  relation  to  sec.  171,  it  was  held,  in  Diefendorf  v.  Gage, 
7  Barb.  18,  that,  under  an  answer  averring  that  property  in 
question  in  the  cause  "was  very  poor,  and  of  little  value,"  proof 
could  not  be  received,  that  such  property  was  "worth  nothing, 
and  of  no  value." 

In  Hawkins  v.  Appleby,  2  Sandf.  421,  a  less  strict  view  was 
taken;  and  the  declaration,  in  that  case,  having  averred  repre- 
sentations by  the  defendant,  that  a  note  there  in  question  was 
"  a  good  note,  and  would  pass  in  South  street,"  proof  that  he 
said  "  the  note  was  good,  and  there  were  people  in  South  street 
who  would  take  it,"  was  held  not  to  be  a  substantial  variance. 

Objections,  otherwise  sustainable,  may  become  untenable  by 
express  waiver.  Thus,  in  Morse  v.  Cloyes,  11  Barb.  100,  the  set- 
tlement of  interrogatories  by  consent,  was  held  to  preclude  both 
parties  from  taking  formal  objections  thereto,  on  the  trial  of  the 
cause.  So,  likewise,  as  to  an  omission  to  take  a  demurrable 
objection,  Ingraham  v.  Baldwin,  12  Barb.  9. 

In  Mann  v.  Morewood,  5  Sandf.  557,  evidence  of  the  alleged 
satisfaction  of  a  debt  by  the  delivery  of  stock,  was  held  not  to 
be  receivable,  in  support  of  a  simple  allegation  of  over-pay- 
ment, without  specifying  any  particulars,  and  the  complaint 
was  dismissed  accordingly. 

In  Fay  v.  Grimsteed,  10  Barb.  321,  evidence  to  show  usury, 
was  refused  to  be  admitted,  under  insufficient  allegations  in  the 
answer.  In  the  same  case,  the  following  general  principles  are 
laid  down,  in  reference  to  the  course  of  proceeding  under  these 
sections  :  "A  variance  between  the  pleadings  and  the  proof, 
sufficient  to  defeat  the  action  or  destroy  the  defence,  must  leave 
the  case  unproved  in  its  entire  scope  an'd  meaning.  If  left  un- 
proved in  some  particular  or  particulars,  it  is  a  subject  for 
amendment,  upon  terms,  if  the  adverse  party  has  been  misled 
by  it ;  otherwise,  amendments  may  be  made  at  the  time  of  the 
trial,  and  without  any  conditions  whatever." 

In  Guritcr  v.  Catlin,  1  Ducr,  253,  11  L.  O.  201,  the  same  con- 
clusion is  conic  to  as  in  Fay  v.  Grimsteed,  with  reference  to  the 
defence  of  usury,  and  it  was  held  that,  in  these  cases,  the  proof 
must  correspond,  in  all  respects,  with  the  allegations  in  the  an- 


TRIAL,  GENERALLY  CONSIDERED.  QQq 

swer.  If  there  is  any  variance,  the  defence  must  be  over- 
ruled. 

In  Marquat  v.  Marquat,  also,  7  How.  417,  a  strict  view  was 
taken  by  the  majority  of  the  court,  as  to  the  necessity  of  the 
proof  in  the  case  corresponding  with  the  pleadings;  and  judg- 
ment given  for  the  plaintiff,  on  an  equitable  view  of  the  case  as 
between  him  and  the  defendant,  was  reversed,  on  the  ground 
that,  though  the  former  might  be  entitled  to  relief  in  another 
form  of  action,  he  had  failed  to  sustain  his  case,  on  the  issue,  as 
actually  joined  between  the  parties.  See,  likewise,  Coan  v.  Os- 
good, 15  Barb.  583,  and  Catlin  v.  Hansen,  1  Duer,  309. 

It  was  held  in  Dihlee  v.  Mason,  1  C.  R  37,  6  L.  O.  363,  that 
these  provisions  apply  to  pleadings  only,  and  not  to  process,  and 
that  a  mistake  in  the  latter  cannot  be  disregarded  at  the  hear- 
ing, though  the  court  may  have  power  to  direct  an  amendment, 
on  motion. 

Amendments  on  Trial.'] — This  subject  has  been  necessarily  en- 
tered upon  to  some  slight  degree,  in  the  preceding  division  of 
this  section.  See,  as  to  amendment  of  process,  Diblee  v.  Mason, 
last  cited;  as  to  an  amendment  being  the  proper  course,  when 
the  defect  complained  of  involves  an  insufficient  statement  of 
facts,  Vanderpool  v.  Tarbox,  7  L.  0.  150 ;  and,  as  to  the  general 
principle  that,  where  the  defect  complained  of  leaves  the  case 
unproved  in  some  particulars,  it  will  be  a  fitting  subject  for 
amendment  upon  terms,  where  the  adverse  party  has  been  mis- 
led, but  otherwise,  where  such  has  not  been  the  case,  Fay  v. 
Orimsteed,  10  Barb.  321.  The  subject  has  also  been  consi- 
dered, to  some  slight  extent,  and  in  a  collateral  manner,  in 
relation  to  amendments  in  pleading. 

A  material  distinction  must  be  drawn  between  amendments 
made  at  the  actual  trial,  under  the  powers  of  the  section  last 
cited,  and  those  made  previously,  on  motion  of  the  parties. 
The  cause  of  action  or  ground  of  defence  cannot  properly  be 
changed  by  an  amendment  made  on  the  trial,  for  the  purpose  of 
conforming  the  pleading  or  proceeding  to  the  facts  proved, 
and,  if  allowed,  such  an  amendment  will  be  inoperative,  and 
any  judgment  taken  under  it  will  be  reversed.  Beardsley  v. 
Stover,  7  How.  294  ;  Marquat  v.  Marquat,  7  How.  417;  Coan  v. 
Osgood,  15  Barb.  583 ;  Catlin  v.  Hansen,  1  Duer,  309.  Nor  can 
such  an  amendment  be  granted,  for  the  purpose  of  making  the 
complaint  conform  to  the  verdict  of  a  jury,  for  larger  damages 


$QQ  TRIAL,  GENERALLY  CONSIDERED. 

than  those  claimed  by  the  plaintiff,  unless  upon  the  condition 
of  payment  of  costs,  and  granting  a  new  trial.  Corning  v. 
Corning,  2  Seld.  97,  1  C.  R.  (N.  S.)  351.  Liberty  was  given,  how- 
ever, to  the  plaintiff  in  that  case,  to  remit  the  excess  of  da- 
mages, in  which  case  the  verdict  was  to  stand. 

The  above  principle,  in  relation  to  amendments  changing  the 
cause  of  action  or  ground  of  defence,  does  not  apply,  however, 
to  applications  made  before  the  trial,  on  motion.  Under  these 
circumstances,  the  power  of  the  court  to  grant  an  amendment 
is  practically  unlimited,  on  good  cause  being  shown  why  that 
facility  should  be  afforded;  provided,  only,  the  actual  claim  on 
the  one  hand,  or  the  actual  defence  on  the  other,  remain  sub- 
stantially the  same.  Under  these  circumstances,  however,  the 
payment  of  costs  will  usually  be  imposed,  as  a  condition. 
Chapman  v.  Webb,  6  How.  390,  1  C.  R.  (N.  S.)  388 ;  Beardsley 
v.  Stover,  7  How.  294.  See  this  subject  heretofore  considered, 
under  the  head  of  Amendments  in  Pleading. 

In  Willis  v.  Underhill,  6  How.  396,  the  appointment  of  a  next 
friend  for  a  feme  covert,  plaintiff,  was  held  to  be  a  fitting  subject 
for  an  amendment,  nunc  pro  tunc,  at  any  stage  of  the  suit. 

Amendments  have  been  allowed  on  the  trial,  under  the  fol- 
lowing circumstances: 

A  mistake  in  the  proper  denomination  of  the  plaintiffs,  was 
allowed  to  be  so  corrected,  in  Barnes  v.  Perine,  9  Barb.  202. 

Where  the  plaintiff  sued  two  parties  as  jointly  liable,  but 
failed  in  proving  the  liability  of  one  of  them,  he  was  allowed  to 
amend,  by  striking  out  the  name  of  such  party,  on  condition  of 
his  forthwith  paying,  or  giving  security  to  him  for  his  costs,  and 
allowing  the  trial  to  stand  over,  if  the  other  defendant  desired. 
Bemis  v.  Bronson,  1  C.  R.  27.  In  Travis  v.  Tobias,  8  How.  333, 
it  was  held  that,  as  a  general  rule,  an  amendment  of  this  latter 
nature  should  not  be  made  instantcr,  on  the  trial.  It  rests, 
however,  clearly  in  the  discretion  of  the  judge,  with  reference 
to  the  peculiar  circumstances  of  each  individual  case.  See  too, 
FuUerton  v.  Taylor,  1  ( J.  \l.  (N.  S.)  Ill,  6  How.  259;  Downing 
v.  Mdnnt  '.)  Now.  'J<»1. 

In  Jackson  v.  Sanders,  I  ('.  R.  27,  permission  was  given  to 
amend  upon  the  trial,  by  substituting  lor  :i  count  upon  two  pro- 
missory notes,  a  count  upon  a  Bpecial  contract,  under  which 
such  notes  bad  been  deposited,  as  a  temporary  security  for  an 
unfulfilled  arrangement.  The  plaintiff,  however,  there  refused 
to  come  to  the  terms  imposed,  and  was  nonsuited  accordingly. 


TRIAL,  GENERALLY  CONSIDERED.  667 

Iii  the  Cayuga  County  Bank  v.  Warden,  2  Seld.  19,  an  amend- 
ment, by  striking  out  parts  of  the  declaration,  allowed  by  the 
judge  upon  the  trial,  without  costs,  was  sustained  by  the  Court 
of  Appeals,  as  authorized  by  the  Code,  and  resting  in  the  dis- 
cretion of  the  court. 

Where  the  complaint,  in  slander,  had  omitted  to  allege  the 
words  complained  of,  to  have  been  spoken  "  in  the  presence  or 
hearing  of  some  person,"  the  court,  at  the  trial,  allowed  the 
complaint  to  be  amended  in  that  respect,  without  costs,  the  de- 
fendant not  having  been  thereby  misled  or  injured.  Wood  v. 
Gilchrist,  1  C.  E.  117. 

Of  course,  amendments  of  the  above  description  can,  for  the 
most  part,  be  made,  or  be  considered  as  having  been  made  upon 
the  spot.  In  some  cases,  however,  it  may  be  necessary  to  apply 
for  a  postponement  of  the  trial  for  that  purpose ;  and,  even 
when  the  defect' may  have  been  disregarded  by  the  court,  it  may 
sometimes  be  prudent  to  make  the  amendment  subsequently,  on 
special  application,  with  a  view  to  ulterior  proceedings.  See 
De  Peyster  v.  Wheeler,  above  cited. 

Where  a  defect,  involving  the  question  that  the  complaint 
might  be  true,  and  yet  the  plaintiff  not  entitled  to  recover,  was 
first  brought  to  light  on  the  trial,  the  defendants  having  omitted 
to  demur;  the  plaintiffs  were  allowed  to  amend,  by  inserting 
the  necessary  averments,  on  payment  of  the  costs  of  the  trial, 
the  defendant  to  have  twenty  da}rs'  time  to  answer.  Executors 
of  Keese  &  Lawrence  v.  Futterton,  1  C.  li.  52. 

In  Leitman  v.  Bite,  8  Sandf.  734,  relief  of  this  nature  was 
granted,  and  the  plaintiff  was  allowed  to  amend  his  complaint 
after  verdict,  the  defect  being,  that  the  words  complained  of,  in 
slander,  had  not  been  averred  in  the  original  language.  This 
leave  was,  however,  only  given  on  terms,  that  he  should  reduce 
the  amount  of  his  verdict  to  a  reasonable  sum.  See,  as  to  this 
last  point,  Diblin  v.  Murphy,  3  Sandf.  19.  An  amendment,  in- 
creasing the  damages  beyond  the  amount  demanded  by  the 
complaint,  is,  however,  inadmissible,  and,  if  made,  a  new  trial 
will  be  granted.      Corning  v.  Corning,  above  noticed. 

Where  one  party  has  been  allowed  to  amend,  the  court  will 
be  disposed  to  grant  the  same  privilege  to  the  other,  though 
otherwise  it  might  not  have  been  permitted.  Hoxie  v.  Cushman, 
7  L.  0.  149. 


668  TRIAL,  GENERALLY  CONSIDERED.  ' 

An  exception  will  not  lie  to  a  refusal  of  a  judge  to  order  an 
amendment  at  the  trial,  unless  the  party  has  shown  a  clear  case 
of  unquestionable  right.  Both  v.  Schloss,  6  Barb.  308  ;  Brown 
v.  McCune,  5  Sandf.  224 ;  Phincle  v.  Vcatghan,  12  Barb.  215. 
"It  is  a  question  addressed  to  the  discretion  of  the  judge.  His 
decision  is  not,  therefore,  the  subject  of  review." 

In  Bedell  v.  Powell,  13  Barb.  183,  it  was  held  to  be  erroneous, 
for  the  judge,  after  trial  of  an  issue  as  to  whether  a  former 
action  had  or  had  not  been  discontinued,  to  allow  the  plaintiff 
to  enter  a  rule  for  that  purpose,  nunc  pro  tunc;  and,  on  such 
rule  being  entered,  and  the  costs  tendered,  to  overrule  the  pre- 
vious defence.  An  order  of  this  description  is  not  authorized 
by  the  section  now  in  question,  it  being  laid  down,  that  a  dis- 
cretion not  reviewable  as  a  general  rule,  should  be  exercised 
soundly,  and  not  so  wielded  as  immediately  to  cut  off  a  party 
from  the  attainment  of  a  clear  legal  right.  See  this  latter  prin- 
ciple recognized  in  Roth  v.  Schloss,  above  noticed. 

§  197.    Objections  on  Trial. 

Generally  considered,  Waiver  of,  if  not  taken  in  due  time.] — The 
extent  to  which  the  Code  has  altered  the  rules  of  evidence,  and 
those  as  to  the  competency  or  incompetency  of  witnesses,  has 
been  examined,  and  the  cases  cited  in  a  previous  chapter.  It 
must  be  borne  in  mind  that,  as  heretofore,  every  exception  or 
objection  as  to  the  competency  of  witnesses,  or  as  to  the  nature 
or  admissibility  of  their  testimony,  or  of  the  other  evidence  on 
any  particular  point,  must  be  taken  or  made  forthwith,  and  be- 
fore the  witness  is  heard  or  the  evidence  passed  on  by  the  court, 
or  the  right  to  take  such  objections  will  be  lost.  See  Leach  v. 
Kehey,  7  Barb.  466;   Coo/c  v.  Hill,  3  Sandf.  341. 

Th''  defendant's  counsel  will,  of  course,  take  especial  care  to 

riot  the  plaintiff  to  such  evidence  as  is  warranted  by  the 

actual  record,  ami   to  object  to  any  testimony  whatever,  which 

beyond  the  allegations  apparent  upon  tin;  pleadings.    The 

rule  in  this  respecl  will  he  found  strictly  laid  down,  in  Bristol 
v.  The  I,'' a.  i  hi,  r  and  Saratoga  Railroad  Company,  '.•  Barb.  158. 
The  conven  e  of  tins  proposition  is,  of  necessity,  equally  appli- 
cable, as  regards  evidence  adduced  by  the  defendant. 

Of  course,  objections  of  this  nature  must  be  taken  at  the 
moment  such  testimony  i-  offered,  with  a  view  to  its  exclusion 


TRIAL,  GENERALLY  CONSIDERED.  669 

from  being  given  at  all.  It  may,  in  fact,  be  laid  down  as  a 
general  rule,  that  all  technical  objections,  whether  affecting  the 
case  in  general,  or  any  particular  branch  of  it,  must  be  taken 
at  once,  either  on  the  opening,  if  of  a  preliminary  nature,  or 
else,  directly  on  the  occurrence  of  the  circumstance  out  of 
which  the  objection  arises;  or  the  right  to  make  such  objection 
will,  in  ordinary  cases,  be  gone.  Such  objections  must  be  thus 
taken,  "so  as  to  enable  the  party  to  supply,  if  possible,  the 
alleged  defect;"  and,  if  this  be  omitted,  the  party  making  that 
omission  will  not  be  permitted  to  avail  himself  of  such  objec- 
tions, on  the  motion  for  a  new  trial.  Merritt  v.  Seaman,  6  Barb. 
330.  This  is  styled  "a  well-established  rule,"  in  New  York  and 
Erie  Railroad  Company  v.  Cook,  2  Sandf.  732.  Thus,  too,  ob- 
jections cannot  be  so  taken  to  the  complaint,  when  the  defend- 
ant has  failed  to  demur.     Carley  v.  Wilkins,  6  Barb.  557. 

The  above  doctrine,  i.  e.,  that  objections,  omitted,  to  be  taken 
on  the  trial,  cannot  afterwards  be  insisted  on,  but  will,  on  the 
contrary,  be  deemed  as  altogether  waived,  is  further  supported 
by  numerous  other  cases,  more  recently  decided  than  the  fore- 
going. See  this  principle  fully  carried  out  in  Laimbeer  v.  City 
of  New  York,  4  Sandf.  109 ;  Stoddard  v.  Long  Island  Railroad 
Company,  5  Sandf.  180;  Rowland  v.  Willetts,  5  Sandf.  219  ;  Teall 
v.Van  Wtjck,  10  Barb.  376;  Hunter  v.  Osterhoudt,  11  Barb.  33; 
Crook  v.  Mall,  11  Barb.  205;  Ingraham  v.  Baldwin,  12  Barb.  9, 
affirmed  by  the  Court  of  Appeals,  7th  Oct.,  1853 ;  Thompson  v. 
Dickerson,  12  Barb.  108;  1  C.  E.  (N.  S.)  213;  Buffalo  and  New 
York  Railroad  Company  v.  Brainerd,  and  Hastings  v.  McKinley, 
Court  of  Appeals,  7th  Oct.,  1853;  Coon  v.  The  Syracuse  and 
Utica  Railroad  Company,  1  Seld.  492  ;  Dayharsh  v.  Enos,  1  Seld. 
531 ;  The  People  v.  Norton,  Court  of  Appeals,  31st  Dec,  1853  ; 
Waterville  Manufacturing  Company  v.  Brown,  9  How.  27.  In 
relation  to  a  similar  waiver  of  objections,  by  admissions  or  pro- 
ceedings anterior  to  the  trial,  see  likewise  Morse  v.  Cloye-s,  11 
Barb.  100,  before  cited. 

If  a  deficiency  in  the  plaintiff's  proof,  is  supplied,  during  the 
trial,  by  the  defendants  themselves,  it  is  a  waiver  of  any  ex- 
ception they  may  have  taken,  based  on  such  deficiency.  Westlake 
v.  St.  Lawrence  County  Mutual  Insurance  Company,  14  Barb.  206  ; 
Bean  v.  Canning,  10  L.  O.  248. 

Nor  can  an  exception  be  sustained,  as  ground  for  a  new  trial, 
when  the  objection,  though  properly  taken  at  the  time,  has 


670  TRIAL,  GENERALLY   CONSIDERED. 

been  subsequently  removed  on  the  trial  itself,  by  supplying 
other  evidence.  Bronson  v.  Winan,  10  Barb.  406,  affirmed  by 
Court  of  Appeals,  12th  April,  1853. 

Waiver  of,  by  Admission] — The  provisions  of  sec.  168,  under 
which,  every  uncontroverted  allegation  on  the  pleadings  is  to  be 
taken  as  true,  will,  of  course,  be  borne  in  mind,  in  getting  up 
the  evidence  for  the  hearing.  A  misapprehension  on  this  sub- 
ject, will  form  no  basis  for  an  application  for  a  new  trial  on  the 
ground  of  surprise.     Wilcox  v.  Bennett,  10  L.  0.  30. 

Where,  on  the  trial  of  a  cause,  the  counsel  agree  as  to  what 
is  admitted  by  the  pleadings,  and  the  judge,  without  looking 
into  them,  assumes  the  statement  of  their  contents  to  be  true, 
the  truth  of  that  statement  cannot  be  controverted  for  the  first 
time,  on  the  argument  of  an  appeal.  Munson  v.  liegeman,  10 
Barb.  112  ;  5  How.  223.  The  reversal  by  the  Court  of  Appeals, 
12th  April,  1853,  does  not  seem  to  affect  this  ruling. 

When  not  waived.'] — An  admission  on  the  pleadings  is  con- 
clusive, and  a  judgment  taken  in  opposition  to  it  will  be  clearly 
erroneous.  An  objection,  on  that  ground,  must,  therefore,  if 
taken,  prevail.  Bridge  v.  Payson,  5  Sandf.  210.  See,  likewise, 
Hackett  v.  Richards,  11  L.  O.  315. 

Objections,  grounded  on  a  want  of  jurisdiction,  either  as  re- 
gards the  person  sued,  or  the  subject-matter  of  the  action,  are 
tenable,  at  any  time,  and  at  any  stage  of  the  cause,  and  are 
incapable  of  waiver.  See  this  subject  heretofore  considered  in 
several  previous  chapters,  and  especially  in  relation  to  courts  of 
lynitcd  jurisdiction,  and  under  the  heads  of  Parties  and  De- 
murrer. 

In  Browne  v.  McGunei  5  Sandf.  224,  the  defence  of  infancy 
was  Bustained,  and  the  doctrine  of  estoppel  maintained  to  be 
wholly  inapplicable  in  such  a  case,  even  where  actual  fraud 
was  shown;  and  a  motion  to  amend  the  pleadings  was  accord- 
ingly denied, 

The  objection,  on  the  ground  that  the  complaint  does  not 
state  facta  sufficient  to  constil  ate  a  cause  of  action,  is  not  waived 
by  an  omission  to  Btate  it  on  the  pleadings.  See  this  subject 
heretofore  considered,  and  tin'  cases  in  point  cited,  under  the 
head  of  Demurrer.  II'  not,  takes  on  the  trial,  however,  it  seems 
more  than  doubtful  whether  it  can  subsequently  be  raised. 


TRIAL,  GENERALLY  CONSIDERED.  071 

An  objection,  on  the  ground  of  insufficiency  in  the  pleadings, 
has  been  held  to  be  maintainable,  even  though  the  proofs  might 
lead  to  a  contrary  conclusion.  Mallory  v.  Lamphear,  8  How. 
491.  Nor  can  any  proceeding  be  maintained  by  the  plaintiff, 
when  it  appears,  upon  the  face  of  his  complaint,  that  he  has  no 
title  to  relief.  Bennett  v.  The  American  Art  Union,  5  Sandf. 
614;  10  L.  0.  132. 

If  any  objection  taken  be  overruled  by  the  court,  a  formal 
exception  should  be  at  once  taken,  and  the  court  requested  to 
note  it,  according  to  the  ordinary  practice. 

With  a  view  to  this,  and,  indeed,  to  the  general  conduct  of 
the  cause,  it  is  impossible  to  insist  too  strongly  upon  the  neces- 
sity of  full  and  accurate  notes  being  taken,  of  all  that  passes  at 
the  hearing,  a  duty  sometimes  imperfectly  performed.  The 
subject  of  exceptions,  and  the  mode  in  which  they  may  be 
made  available,  will  be  further  considered  in  a  subsequent 
chapter,  under  the  head  of  New  Trial.  Where  the  exceptions 
taken  are  of  an  important  nature,  it  will  be  expedient  to  apply, 
at  the  time,  under  sec.  265,  that  they  be  heard  in  the  first  in- 
stance at  the  general  term.  See  this  subject  further  consi- 
dered, and  the  cases  cited,  in  the  chapter  last  alluded  to. 


§  1 98.     Other  Incidents  of  TriaU  generally  considered. 

Separate  Trials.]— The  provisions  of  sec.  258,  which  allow  of 
a  separate  trial  between  the  plaintiff  and  any  of  several  defend- 
ants, whenever,  in  the  opinion  of  the  court,  justice  will  be 
thereby  promoted,  will,  of  course,  not  be  overlooked.  Robin- 
son v.  Frost,  14  Barb.  536,  and  TJie  People  v.  Cram,  8  Barb.  151, 
are  instances  of  a  separate  judgment  being  taken,  against  de- 
fendants jointly  sued  at  the  outset.  See,  likewise,  Fullerton  v. 
Taylor,  6  How.  254,  1  C.  R  (N.  S.)  411 ;  and  Downing  v.  Mann, 
9  How.  204. 

Granting  Referenced] — It  is  competent,  as  heretofore,  for  either 
party  to  move  for  a  reference,  or  for  the  court  to  direct  one, 
either  at  the  outset,  or  during  the'progress  of  the  trial,  in  case 
it  clearly  appears  that  the  examination  of  a  long  account  is  in- 
volved, or  that  the  case  is  otherwise  one,  in  which  a  reference, 
under  the  provisions  of  sec.  271,  is  the  proper  course.  The 
granting  of  such  reference,  if  involving  the   whole  issue,   at 


(J72  TRIAL,  GENERALLY  CONSIDERED. 

once  stops  the  proceedings.  If,  on  the  contrary,  such  reference 
be  merely  subsidiary,  and  for  the  information  of  the  court  be- 
fore judgment,  (see  subdivision  2  of  that  section,)  and  the  main 
issues  in  the  cause  are  capable  of  being'  at  once  submitted  to 
the  jury,  the  case  will  go  on  in  its  ordinary  course. 

A  subsidiary  reference  will  not,  however,  be  granted,  though 
otherwise  as  of  course,  where  the  court  is  satisfied,  at  the  hear- 
ing, that  all  the  facts  are  before  it,  and  that  the  plaintiff  cannot 
establish  a  sufficient  title  to  relief.  Dominick  v.  Michael,  4 
Sandf.  874.  See,  heretofore,  under  the  head  of  Motion  for  a 
Reference,  and  hereafter,  under  that  of  Trial  by  Referees. 

Admissions  on  Trial~\ — It  is,  of  course,  a  frequent  practice  in 
cases  where  the  proceedings  are  fittingly  carried  on,  to  save  the 
time  of  the  court  and  the  parties,  and  diminish  the  costs,  by 
admitting  facts  known  to  be  certainly  provable.  An  abuse  of 
this  practice,  will,  however,  be  guarded  against.  Thus,  in 
Niles  v.  Lindsley,  8  How.  131,  1  Duer,  610,  where  a  claim  of  title 
arose  upon  the  pleadings,  and  was  put  in  issue  by  the  defend- 
ant, it  was  held  that  he  could  not  save  the  costs  of  course, 
which  follow  a  verdict  of  this  description,  by  admitting  the 
title  on  the  actual  trial,  after  the  plaintiff  had  been  put  to  the 
expense  of  preparing  to  prove  it,  by  reason  of  his  previous 
denial. 

Postponement  of  Trial.'] — In  the  event  of  the  absence  of  a 
material  witness,  or  any  other  cause  rendering  a  postponement 
of  the  trial  necessary,  an  application  may  be  made  to  the  court, 
as  under  the  former  practice,  which  remains  unchanged  in  this 
respect.  If  the  application  be  made  in  good  faith,  and  with 
due  diligence,  a  mere  statement  of  the  absence  of  such  witness, 
and  of  the  reason  for  such  absence,  will  be  sufficient,  without 
entering  into  any  details  as  to  the  nature  of  his  supposed  testi- 
mony.    See  Pulver  v.  Hiserodt,  o  How.  49. 

§  199.      Course  of    Trial. 

THE  Code  effects  little  or  no  change,  in  respect  to  the  course 
of  trial  in  general,  of  whatever  nature.  The  old  rules,  that 
the  counsel  for  the  party  sustaining  the  affirmative  of  the  issue 
to  be  tried,  is  first  heard  in  opening,  and  last  in  summing  up 
the  case,  and  also  as  to  the  general  conduct  of  the  cause,  during 


TRIAL,   GENERALLY  CONSIDERED.  673 

the  hearing,  remain  unaltered,  by  the  Code,  or  the  recent  de- 
cisions.    The  former  regulations  in  relation  to  the  action  of 
counsel,  are  continued,   by  Rule  13  of  the  Supreme  Court, 
which  provides  that  "On  the  trial  of  issues  of  fact,  one  counsel 
on  each  side  shall  examine  or  cross-examine  a  witness,  and  one 
counsel  only  on  each  side  shall  sum  up  the  cause,  unless  the 
justice  who  holds  the  court  shall  otherwise  order."     Prior  to 
the  revision  of  1852,  this  rule  only  related  to  trials  on  the  cir- 
cuit; it  now  extends  to  all,  of  every  description  whatsoever.  By 
Rule  14,  as  now  altered,  it  is  also  further  provided  that  "at  the 
hearing  of  causes  at  a  general  or  special  term,  not  more  than 
one  counsel  shall  be  heard  on  each  side,  and  then,  not  more 
than  two  hours  each,  except  when  the  court  shall  otherwise 
order,"  in  analogy  with  the  practice  of  the  Court  of  Appeals, 
as  similarly  fixed  by  Rule  12  of  that  tribunal.     On  the  re- 
vision of  the  Rules  on  3d  August,  1854,  it  has  been  provided, 
that  the    examining  counsel  shall   stand,  while  examining  a 
witness,  and  that  he  shall  not  take  minutes  of  testimony,  unless 
the  justice  holding  the  court  shall  otherwise  order.      See  Rule 
13,  as  last  amended.     This  regulation  is  evidently  made  with  a 
view   to  curtail  the  time  so  occupied,   as  far  as  practicable. 
What  its  effect  may  be  in  practice  is  doubtful,  and  whether  he 
be  able  to  do  so  himself  or  not,  no  prudent  practitioner  will  ne- 
glect to  take,  or  to  have  taken  by  an  amanuensis,  sufficiently 
full  and  accurate  notes  of  the  testimony  given,  such  as  may,  at 
all  events,  be  sufficient  for  his  own  use  on  the  trial,  and  for  the 
purpose  of  drawing  up  a  case,  for  review  of  the  decision  of  the 
court  or  jury,  if  adverse. 

Notice  of  incidental  Decisions.'} — In  preparing  the  above  chap- 
ter for  publication,  notes  were  made  by  the  author,  of  numerous 
recent  decisions,  on  various  points  of  law,  incidentally  bearing 
on  the  conduct  of  trial  generally  considered,  but  irrespective  of 
the  provisions  of  the  Code  on  that  subject,  or  of  the  practice 
under  those  provisions. 

To  enter  into  a  detailed  analysis  of  these  decisions,  bearing 
as  they  do  on  questions  of  mere  law,  as  contradistinguished 
from  questions  of  practice,  would  necessitate  a  complete  de- 
parture from  the  plan  of  the  present  work,  and,  at  the  best, 
would  be  of  little  if  any  real  use.  It  must  either  enter  into  a 
detailed  consideration  of  the  numerous  earlier  cases,  establish- 
43 


67-i  TRIAL,  GENERALLY  CONSIDERED. 

ing  the  law  on  the  same  and  on  similar  points,  which  would  in- 
volve the  composition  of  a  lengthened  treatise,  or,  if  not,  it 
would,  of  necessity,  be  superficial  in  its  nature,  and,  for  practi- 
cal purposes,  valueless. 

An  enumeration  of  those  decisions  as  below  made,  may, 
however,  save  some  little  trouble,  as  affording  the  means  of  an 
easier  reference  to  the  cases  themselves ;  and,  therefore,  the 
author,  having  the  classification  before  him,  has  thought  it  may 
not  be  unacceptable,  to  submit  it,  such  as  it  is,  to  the  profession. 
The  cases  in  question  refer  too,  for  the  most  part,  to  the  earlier 
decisions  in  point,  and  will  therefore  form  an  additional  guide 
for  a  convenient  reference  to  the  law,  as  laid  down,  under  each 
particular  state  of  circumstances. 

Without  further  preface,  the  decisions  referred  to  may  be 
classified  as  follows : 

As  to  evidence  of  usage — Vail  v.  Bice,  1  Seld.  157;  Beirne 
v.  Dord,  1  Seld.  95 ;  Hargraves  v.  Stone,  1  Seld.  73 ;  Wall 
v.  The  Howard  Insurance  Company,  14  Barb.  383 ;  Bronson  v. 
Wiman,  10  Barb.  406 ;  Bowen  v.  Newell,  Court  of  Appeals, 
12th  April,  1853. 

On  the  question  of  Res  Adjudicata,  or  the  conclusiveness  of 
official  proceedings,  in  its  various  forms — Lansing  v.  Russel, 
13  Barb.  510 ;  Spicer  v.  Norton,  13  Barb.  542 ;  Buell  v.  The 
Trustees  of  Lockport,  11  Barb.  602,  affirmed  by  the  Court  of 
Appeals,  12th  April,  1853;  Burdick  v.  Post,  12  Barb.  168; 
Briggs  v.  Wells,  12  Barb.  567 ;  Green  v.  Clark,  13  Barb.  57 ; 
Kelsey  v.  Bradbury,  12  L.  O.  222;  Baker  v.  Rand,  13  Barb. 
152 ;  Edwards  v.  Stewart,  15  Barb.  67 ;  {Reynolds  v.  Brown,  15 
Barb.  24 ;  Henderson  v.  Cairns,  14  Barb.  15 ;)  People  v.  Down- 
ing, 4  Sandf.  189 ;  Waterhury  v.  Graham,  4  Sandf.  215 ;  Birck- 
lu:nd  v.  Brown,  5  Sandf.  134;  Doty  v.  Brown,  4  Comst.  71; 
Reynolds  v.  Davis,  5  .Sandf.  267 ;  Oakley  v.  Aspinwall,  1  Duer, 
1,  10  L  <).  79;  Dobson  v.  Pearce,  1  Duer,  142;  10  L.  O.  170; 
McCarthy  v.  Marsh,  I  Seld.  263;  Dyckman  v.  The  Mayor  of  New 
York,  \  Seld.  !•".  I;  Sheldon  v.Wright,l  Seld.  497;  Vanderpoel 
v.Van  Valhenburgh,  2  Seld.  L90;  Burhaus  v.  Van  Zandt,  Court 
of  Appeals,  80th  December,  L852.  Sec,  nlso,  as  to  the  conclu- 
siveness of  an  Inquisition  in  Lunacy — Wadsworth  v.  Sherman, 
1  I  Barb.  169. 

In  relation  to  the  charter  and  ordinances  of  the  City  of  New 
York — I/owell  v.  Ruggles,  1.  Seld.  414;  People  v.  Mayor  of  New 
York,  7  How.  SI. 


TRIAL,  GENERALLY  CONSIDERED.  (375 

As  to  the  admissibility  of  entries  in  the  books  of  a  party, 
read  without  objection — Brake  v.  Kimball,  5  Sandf.  237 ;  White 
v.  Ambler,  Court  of  Appeals,  12th  April,  1853.  See,  also,  in 
relation  to  entries  in  general — Rowland  v.  Willets,  5  Sandf.  219; 
Cole  v.  Jessup,  Court  of  Appeals,  April  18th,  1854. 

As  to  the  declarations  of  parties — Ogden  v.  Peters,  15  Barb. 
560 ;  Carpenter  v.  Sheldon,  5  Sandf.  77 ;  Bearss  v.  Copley,  Court 
of  Appeals,  18th  April,  1854;  and  in  criminal  cases,  The  People 
v.  Hendrickson,  8  How.  404,  Notes  of  Court  of  Appeals,  18th 
April,  1854,  9  How.  155. 

As  to  the  order  of  trial,  and  admissibility  and  burden  of 
proof — Catlin  v.  Hansen,  1  Duer,  309 ;  Bedell  v.  Powell,  13 
Barb.  183 ;  Catlin  v.  Gunter,  1  Duer,  253,  11  L.  O.  201 ;  Wright 
v.  Douglass,  10  Barb.  97;  McKnight  v.  Dunlop,  1  Seld.  537; 
Boyle  v.  Colman,  13  Barb.  42  ;  McCurdy  v.  Brown,  1  Duer,  101 ; 
Dunckle  v.  Kocker,  11  Barb.  387. 

As  to  the  inadmissibility  of  inferior  evidence,  when  better 
can  be  procured — Waterville  Manufacturing  Company  v.  Bryan, 
14  Barb.  182 ;  Same  case,  9  How.  27 ;  Hundley  v.  Greene,  15 
Barb.  601. 

As  to  the  admissibility  of  parol  evidence  in  relation  to  a  pre- 
vious contract — Bell  v.  Holford,  1  Duer,  58;  Jones  v.  Osgood,  2 
Seld.  233  ;  Stroud  v.  Frith,  11  Barb.  300. 

As  to  evidence  in  special  cases,  viz. : 

In  relation  to  bills  and  promissory  notes,  presentment  and 
protest — Sawyer  v.  Warner,  15  Barb.  282  ;  Burbank  v.  Beach,  15 
Barb.  326 ;  Pratt  v.  Gulick,  13  Barb.  297 ;  James  v.  Chalmers-^ 
5  Sandf.  52 ;  Cook  v.  Litchfield,  5  Sandf.  330,  10  L.  O.  3.30, 
affirmed  by  Court  of  Appeals,  31st  December,  1853 ;  Cayuga 
County  Bank  v.  Warden,  2  Seld.  19. 

In  actions  for  personal  torts — Bush  v.  Prosser,  13  Barb.  221 ; 
Smith  v.  Watte,  7  How.  227 ;  Stiles  v.  Comstock,  9  How.  48.  See,, 
likewise,  heretofore  under  the  heads  of  slander,  libel,  &c 

In  ejectment,  and  as  to  adverse  possession — Lane  v.  Gould, 
10  Barb.  254;  Hill  v.  Draper,  10  Barb.  454;  Livingston  v.  Tan- 
ner, 12  Barb.  481 ;  Parsons  v.  Brown,  15  Barb.  590. 

In  replevin — McCurdy  v.  Brown,  1  Duer,  101. 

As  to  presumption  of  payment — Waddell  v.  Elmendorf,  12 
Barb.  585. 

Of  fraud,  in  action  on  contract-— Brown  v.McCu.ne,  5  Sandf. 
224. 


(576  TRIAL  OF  AN  ISSUE  OF  LAW. 

As  to  evidence  of  value,  and  the  opinions  of  witnesses,  on 
that  and  other  points — Westlalce  v.  St.  Lawrence  Mutual  Insur- 
ance Co.,  14  Barb.  206;  Beekman  v.  Platner,  15  Barb.  550; 
Harris  v.  Roofs  Executors,  10  Barb.  489 ;  De  Witt  v.  Barley,  13 
Barb.  550,  affirmed  by  Court  of  Appeals,  31st  December,  1853 ; 
Boyle  v.  Colman,  13  Barb.  42 ;  Bearss  v.  Copley,  Court  of  Appeals, 
18th  April,  1854  ;  McGregor  v.  Brown,  Same  court,  18th  April, 
1854. 

As  to  the  evidence  of  one  witness  only,  in  contradiction  to 
answer — Jacks  v.  Nichols,  1  Seld.  178.  In  other  cases — Beattie 
v.  Qua,  15  Barb.  132. 

As  to  impeaching  or  contradicting  a  witness — Sprague  v. 
Cadwell,  12  Barb.  516 ;  Morgan  v.  Frees,  15  Barb.  352 ;  Gilbert 
v.  Sheldon,  13  Barb.  623. 

As  to  evidence  of  bad  character  of  the  plaintiff  himself — 
Anon.,  8  How.  434. 

As  to  the  privileges  of  witnesses — Van  Pelt  v.  Boyer,  7  How. 

325. 

As  to  recalling  a  witness — Dunckle  v.  Kocker,  11  Barb.  387. 

As  to  the  power  of  a  witness  to  refresh  his  memory  on  the 
trial,  and  the  power  to  call  for  the  production  of  his  books, 
when  he  is  able  to  swear  to  their  contents — Hoioland  v.  Willetts, 
5  Sandf.  219 ;    Van  Buren  v.  Cockbum,  14  Barb.  118. 


CHAPTER     II. 

TRIAL    OF    AN    ISSUE    OF    LAW. 


COMPARATIVELY  few  remarks  will  suffice  for  this  branch  of 
the  subject,  separately  considered. 

§  200.    Course  o?i  Trial. 

Preparations  fir."] — The  papers  necessary  to  be  prepared,  for 
the  purpose  of  bringing  on  an  issue  of  this  description,  have 
already  been  noticed,  Milder  the  head  of  Preparations  for  Trial. 
They  consist,  simply,  of  a  copy  for  the  court,  of  the  summons 


TRIAL  OF  AN  ISSUE  OF  LAW.  077 

and  the  pleadings  on  which  the  issue  has  been  joined.  In  many 
cases,  however,  the  preparation  and  service  of  points,  as  on  an 
appeal,  would  be  convenient,  though  not  indispensable.  In  no 
case  need  the  papers  be  printed,  under  the  rules  as  they  at 
present  stand. 

Actual  Hearing.] — Where  issues  of  law  and  of  fact  are  joined 
in  the  same  case,  the  former  are  to  be  first  tried,  unless  other- 
wise directed.  See  this  subject  fully  considered  in  a  previous 
chapter,  involving  a  notice  of  the  fluctuations  of  the  Legis- 
lature, and  of  the  consequent  directions  of  the  courts  in  relation 
to  the  question,  as  to  whether  issues  of  this  nature  were  pri- 
marily cognizable  by  the  special,  or  by  the  general  term.  See 
also  the  Eules  of  Court  limiting  the  arguments  of  counsel,  as 
noticed  in  the  previous  chapter,  and  which  are  unquestionably 
applicable  to  a  trial  of  this  description.  On  a  demurrer  to 
answer  or  reply,  it  is  settled,  under  the  new  as  under  the  old 
practice,  that  a  party,  whose  pleading  is  demurred  to,  may  go 
behind  it,  and  attack  the  previous  pleading  of  his  adversary, 
when  that  pleading  is  defective  in  substance ;  and,  if  he  succeed 
in  establishing  a  defect  of  this  description,  he  will  be  entitled 
to  judgment  in  his  favor,  notwithstanding  the  deficiencies  of  his 
own  pleading.  Stoddard  v.  Onondaga  Annual  Conference,  12 
Barb.  573 ;  Fry  v.  Bennett,  5  Sandf.  54,  9  L.  O.  330,  1  C.  R 
(N.S.)  238;  Schwab  v.  Furniss,  4  Sandf.  704,  1  C.  E.  (N.  S.) 
342  ;  Burnham  v.  De  Bevoise,  8  How.  159.  The  defect,  how- 
ever, to  be  so  impeachable,  must  be  substantial,  and  such  as 
would  have  entitled  the  objecting  party  to  judgment,  had  that 
objection  been  originally  taken  in  due  form. 

A  default  may  be  taken  on  a  trial  of  this  nature,  as  well  as 
on  that  of  an  issue  of  fact.  See  the  succeeding  chapter  on  this 
subject. 


§  201.     Course  on  Decision. 

The  decision  of  the  single  judge  upon  such  an  issue,  is  sub- 
ject to  precisely  the  same  conditions,  as  that  upon  an  issue  of 
fact  triable  by  the  court.  See  chapter  V.  of  the  present  book, 
under  that  head. 

The   immediate   concomitants   of  the   decision,    when   pro- 


678  TRIAL  OF  AN  ISSUE  OF  LAW. 

nounced,  before  the  formal  entry  of  judgment  thereon,  remain 
to  be  considered. 

On  Demurrer  to  ivhole  pleading.  Leave  to  Amend.'] — If  a  de- 
murrer to  the  whole  pleading  be  allowed,  the  entry  of  judg- 
ment for  the  demurring  party  follows,  as  of  course,  unless  leave 
to  amend  be  given  by  the  court,  or  applied  for  and  obtained  by 
counsel.  This  application  will  be  a  matter  of  absolute'  neces- 
sity, unless  it  be  meant  to  abandon  the  litigation  altogether,  or 
to  rest  the  case  exclusively  on  an  appeal  from  the  allowance  of 
the  demurrer,  without  raising  any  contestation  as  to  the  facts. 

The  application  for  the  above  purpose  may  be  made  at  the 
time  the  decision  is  pronounced,  or  afterwards,  on  special  motion 
or  order  to  show  cause :  the  former  is  the  more  usual  course. 
If  the  application  be  made  bond,  Jide,  the  court  will  rarely  refuse 
it;  but  it  is  competent  to  the  adverse  party  to  oppose,  and, 
where  the  pleading  is  evidently  of  a  frivolous  nature,  that 
opposition  may  possibly  prevail. 

In  cases  where  a  demurrer  has  been  allowed,  on  the  ground 
of  the  improper  joinder  of  diverse  causes  of  action,  special 
powers  are  given  to  the  court  to  impose  strict  terms  upon  the 
plaintiff,  with  regard  to  the  proper  division  of  those  causes  in 
the  amended  pleading,  as  a  condition  precedent  to  granting 
leave  to  amend.  See  the  last  sentence  of  sec.  172,  as  amended. 
The  payment  of  the  costs  of  the  demurrer  will  also  generally 
be  imposed,  Getty  v.  The  Hudson  River  Railroad  Company,  8 
How.  177,  and  should  be  always  asked  for. 

If,  on  the  contrary,  a  demurrer  to  the  whole  pleading  be  over- 
ruled, the  opposite  party  becomes  entitled  to  sign  judgment,  as 
of  course,  unless  leave  be  given  to  plead  over.  Where  the  de- 
murrer has  been  clearly  frivolous  or  untenable,  such  leave  may 
be  refused  by  the  court.  See  numerous  cases  to  this  effect,  cited 
in  the  preceding  chapters,  and  particularly  in  those  on  the  sub- 
ject of  demurrer,  and  plaintiff's  proceedings  on  receipt  of  the 
defendant's  pleading. 

When-,  however,  the  demurrer  has  been  taken  in  good  faith, 
the  courl ;  have,  ;is  ;i  general  rule,  been  disposed  to  grant  leave 
to  the  defendant  to  plead  over.  This  is,  in  fact,  made  the  sub- 
ject of  express  provision  in  sec.  172.  The  imposition  of  terms 
is  a  matter  almost  of  course  in  such  cases;  and,  if  asked  for  at 
the  tine'  the  court  will  frequently  prescribe  conditions  as  to  the 


TRIAL   OF  AN  ISSUE  OF  LAW.  679 

nature  of  the  substituted  defence — as,  for  instance,  that  the 
statute  of  limitations  should  not  be  pleaded;  though,  if  then 
omitted,  it  will  be  too  late  to  make  the  same  demand  at  a  later 
period.  The  court  will  not,  however,  be  disposed  to  take  the 
same  course,  with  regard  to  the  defence  of  usury.  Grant  v. 
McCaughin,  4  How.  216. 

Course  on  Leave  to  Amend,  on  Partial  Demurrer.'] — If  leave  to 
amend  be  granted  to  the  plaintiff,  on  the  one  hand,  or  leave  to 
plead  over,  to  the  defendant,  on  the  other ;  or  if  the  demurrer 
be  only  to  part  of  a  pleading,  leaving  other  parts  of  it  unaf- 
fected, on  which  a  sufficient  issue  of  fact  has  been  raised,  the 
decision  of  the  judge  should  be  entered  as  an  order,  and  a  copy 
served  on  the  opposite  party,  in  the  usual  manner ;  though  no 
further  action  can  be  taken  on  such  proceeding,  until  the  re- 
maining issues  in  the  cause  have  been  disposed  of.  Where  the 
demurrer  has  been  to  part  of  a  pleading,  and  has  been  allowed, 
that  part  becomes  a  nullity  for  all  further  purposes.  Where 
leave  is  given  to  amend  or  plead  over,  nothing  further  can  be 
done  until  the  expiration  of  that  period,  or  of  any  extension 
thereof  duly  obtained;  and,  if  the  adversary  avail  himself  of 
the  facilities  thus  granted,  in  due  time,  a  new  issue  will  be  raised, 
and  the  former  proceedings  will  become  obsolete,  except  in  so 
far  as  they  control  those  subsequent,  by  preventing  the  matter 
objected  to  from  being  again  brought  forward. 

The  review  of  the  decision  on  a  demurrer,  whether  total  or 
partial,  and  the  questions  which  have  arisen  as  to  whether, 
under  different  states  or  circumstances,  that  decision  should  or 
should  not  be  entered  as  a  judgment,  or  as  an  order  respectively, 
will  be  fully  considered  hereafter,  under  the  heads  of  Judgment 
and  Appeals. 

Omission  to  amend  after  leave  given.  Consequences  of,  and 
Course  of  Adverse  Party.~\ — If,  however,  on  the  contrary,  the 
party  in  default  suffer  the  time  allowed  him  to  elapse,  without 
taking  the  necessary  steps,  he  will  be  precluded  from  further 
amendments,  if  the  demurrer  be  partial ;  or,  if  it  be  to  the 
whole  pleading,  the  party  prevailing  will  be  entitled  to  sign 
judgment  on  such  demurrer,  in  the  usual  manner,  exactly  as  if 
leave  to  amend  or  plead  over  had  not  been  asked  for ;  or,  if 
asked  for,  had  been  refused.     All  that  will  be  required  for  the 


680  TAKING  DEFAULT  OR  INQUEST. 

purpose  of  signing  such  judgment,  will  be  proof  of  the  service 
of  the  order,  and,  likewise,  that  the  conditions  thereby  imposed 
have  not  been  complied  with.  On  these  an  order  should  be 
applied  for  ex  parte,  either  that  immediate  judgment  should  be 
entered,  or  that  the  opposite  party  should  show  cause  why  such 
should  not  be  the  case ;  or  a  notice  of  motion  may  be  given  to 
the  same  effect.  On  the  return  of  this  order,  or  the  hearing  of 
the  motion,  the  relief  will  be  as  of  course,  unless  the  opposite 
party  be  prepared  with  his  fresh  pleading,  and  obtain  leave  to 
put  it  in.  which  he  can  only  do  upon  special  leave,  and  on  pay- 
ment of  all  costs,  including  the  costs  of  the  motion. 


CHAPTER    III. 

OF  TAKING  DEFAULT  OR  INQUEST. 


General  Remarks.] — These  two  proceedings  are,  in  some  re- 
spects, distinct ;  in  others,  analogous.  They  are  distinct,  in  so 
far  that  inquest  is  an  extraordinary  remedy,  obtainable  out  of 
the  regular  course,  by  the  plaintiff  alone,  and  not  by  the  de- 
fendant, and  that,  only  under  peculiar  circumstances,  and  only 
as  regards  issues  of  fact;  whilst  default  is  a  regular  proceeding, 
free  to  be  obtained  by  either  party,  taken  in  the  ordinary  march 
of  the  cause,  and  applicable  to  all  trials  whatever.  The 
analogy  between  them,  as  being  both  ex  parte  proceedings, 
upon  the  failure  of  the  opposite  party  to  sustain  his  case,  is 
however,  so  close,  that  they  will  be  most  conveniently  treated 
in  the  same  chapter,  and  in  connection  with  each  other. 

§  202.    Default. 

Where  judgment  by  default  is  taken,  the  party  taking  such1 
judgment  must  be  in  readiness  in  court,  at  the  time  the  cause 
is  called  <>n  in  ils  course,  and  must  answer  to  the  call.  Lie 
must,  also  be  prepared  with  the  notice  of  trial,  and  with  due 
proof  of  service,  cither  by  the  admission  of  the  opposite  attor- 


TAKING  DEFAULT  OR  INQUEST.  681 

ney,  or  by  affidavit  in  the  ordinary  form.  If  the  default  be 
taken  on  the  part  of  the  plaintiff,  evidence  must  be  ready  to 
prove  the  existence  of  the  cause  of  action,  if  not  admitted  upon 
the  pleadings,  (in  which  case  no  further  evidence  is  necessary); 
and,  if  the  action  be  upon  a  promissory  note,  or  other  instru- 
ment for  payment  of  money,  the  instrument  itself  must  be  in 
court.  A  calculation  of  the  amount  due  for  principal  and  in- 
terest, must  also,  in  the  last  case,  be  prepared  and  sworn  to. 
Where,  however,  unliquidated  damages  are  claimed,  the  court 
will  order  them  to  be  assessed  by  a  jury ;  a  reference  cannot 
properly  be  taken  for  this  purpose,  and,  if  taken,  will  be 
irregular,  and  may  be  set  aside,  Hewitt  v.  IloiveU,  8  How.  346. 
If,  on  the  contrary,  the  case  is  not  one  in  which  damages  are 
claimed,  and  the  examination  of  a  long  account  be  involved,  a 
reference  may  either  be  directed,  or,  if  the  account  be  simple, 
and  the  proof  of  it  ready  in  court,  the  court  may  act  upon  such 
proof,  at  their  discretion,  without  going  through  the  form  of 
a  reference. 

The  above  observations  have  respect  to  the  taking  a  default 
on  the  part  of  the  plaintiff.  If,  on  the  contrary,  that  measure 
be  taken  on  the  part  of  the  defendant,  all  that,  under  ordinary 
circumstances,  will  be  required,  will  be  the  production  of  the 
counter  notice  of  trial,  and  due  proof  of  its  service. 

The  defendant  cannot,  however,  take  such  judgment  as  of 
course,  unless  he  has  himself  noticed  and  placed  the  cause  upon 
the  calendar,  by  means  of  a  counter  note  of  issue.  If  he  omit 
this  precaution,  he  will  be  left  to  his  motion  to  dismiss  the  com- 
plaint, in  the  ordinary  course  of  proceedings,  as  before  treated 
of.  The  precaution  of  filing  a  counter  note  of  issue,  and  giving 
a  counter  notice,  is  so  easy  and  so  simple,  that  it  ought  never 
to  be  omitted.  His  giving  the  counter  notice  alone  will  be  in- 
efficient, unless  he  himself  place,  or  see  that  the  plaintiff  places 
the  cause  upon  the  calendar.  If  this  be  not  the  case,  he  can- 
not move  to  dismiss  at  the  circuit,  and  such  a  dismissal,  if  ob- 
tained, will  be  set  aside  as  irregular,  Browning  v.  Paige}  7  How. 
487. 

A  judgment  of  dismissal  may,  however,  be  taken,  on  any 
subsequent  day  during  the  same  circuit,  in  case  the  plaintiff  is 
not  ready  on  the  first  call,  and  subsequently  fails  to  perform 
conditions  then  imposed.  So  held,  with  reference  to  a  notice 
of  discontinuance,  accompanied  by  a  tender  of  taxable  costs, 


682  TAKING  DEFAULT  OR  INQUEST. 

but  not  of  an  allowance  which  had  been  made  by  the  court,  in 
Hoffatt  v.  Ford,  14  Barb.  577. 

Where  the  cause  has  once  been  passed,  and  set  down  for  a 
future  day  by  consent,  the  effect  of  which  consent  is,  that  it 
eventually  goes  over  the  circuit  altogether,  it  will  amount  to  a 
waiver  on  the  part  of  the  defendant,  and  will  preclude  him 
from  moving  to  dismiss,  on  the  ground  that  the  plaintiff  was 
not  ready  at  the  first  call.    Fuller  v.  Sweet,  9  How.  74. 

The  above  is  all  that  will  be  required  on  the  part  of  the  de- 
fendant, in  order  to  obtain  the  ordinary  judgment  of  dismissal 
against  the  plaintiff.  If,  however,  he  claim  affirmative  relief  in 
his  answer,  and  his  right  to  such  relief  be  not  admitted  upon 
the  pleadings,  he  should  be  prepared  with  proof  of  the  existence 
of  such  counter-claim,  and  also  of  the  amount  due  to  him 
thereon,  if  in  the  nature  of  a  set-off,  exactly  as  if  the  positions 
of  the  parties  were  reversed,  and  such  affirmative  relief  was 
sought  by  him  as  plaintiff. 

The  defendant's  power  to  move  for  a  dismissal  cannot,  how- 
ever, be  exercised  in  any  manner,  so  as  to  prejudice  the  rights 
of  the  plaintiff,  inherent  or  acquired.  Thus,  where  the  defend- 
ant had  made  an  offer  to  take  judgment,  and,  during  the  ten 
days  allowed  to  the  plaintiff  to  make  his  election,  moved  for  a 
dismissal  at  the  circuit,  the  order,  so  obtained,  was  set  aside. 
The  offer  amounted  to  a  stipulation  by  the  defendant,  that  no 
proceedings  should  be  taken,  during  the  time  allowed  to  the 
plaintiff,  nor  could  the  latter  be  barred  of  his  right  to  that  time, 
by  any  thing,  short  of  a  written  acceptance  or  refusal.  A  mere 
parol  declaration  by  his  attorney,  would  not  avail  to  do  so. 
Walker  v.  Johnson,  8  How.  240. 

An  amended  complaint,  served  by  the  plaintiff,  was,  in  like 
manner,  held  to  preclude  the  defendant  from  taking  a  default. 
Hi:  could  not  disregard  it,  as  there  claimed,  however  irregular 
it  might  appear  to  be,  prima  facie.  His  only  course  was  to 
apply  to  tin:  court  upon  motion.  Rogers  v.  Rallibun,  8  How. 
466.  Sec  the  subject  of  amendments  further  considered  in  the 
succeeding  section,  in  relation  to  inquest. 

Either  party,  attending  prepared  as  above,  is  entitled  to  bring 
on  the  cause  at  once,  when  called,  and  to  take  his  judgment,  if 
the  opposite  party  tail  to  appear.  A  jury  is  not  necessary, 
as  the  very  failure  to  appear  of  itself  renders  the  action 
triable  by  the  court,  under  sec.  266;  and  the  affirmative  right 
of  the  applicant  to  relief,  and  the  amount  of  the  relief  claimable, 


TAKING  DEFAULT  OR  INQUEST.  683 

being  shown,  either  by  admission  on  the  pleadings,  or  by  ex 
parte  evidence,  if  requisite,  the  judgment  of  the  court  follows, 
as  of  course.  Attention  should  be  paid  to  Rule  26,  which  pre- 
scribes that,  on  taking  an  order  of  this  nature,  the  moving 
counsel's  name  should  be  endorsed  upon  the  paper  containing 
the  proof  of  notice. 

Where,  however,  the  opposite  party  is  really  and  hond  fide 
prepared  for  trial,  and  his  absence  at  the  moment  the  cause  is 
called  on  is  a  mere  matter  of  accident,  the  application  for  judg- 
ment by  default  would  be  not  merely  ungracious,  but  practically 
useless.  Under  these  circumstances,  the  court  will  open  a  de- 
fault so  taken,  almost  as  of  course,  on  an  application  for  that 
purpose.  In  cases,  on  the  contrary,  of  wilful  or  vexatious  de- 
lay, or  virtual  abandonment  of  his  case  by  the  opposite  party, 
the  taking  a  default  will  be  a  fitting'  and  appropriate  remedy. 
The  question  of  opening  a  default  or  judgment,  so  taken,  will 
be  considered  at  the  close  of  the  chapter. 

In  some  tribunals,  such  as  the  New  York  Common  Pleas, 
where  a  strict  practice  prevails  in  relation  to  the  calling  the 
calendar,  and  where,  in  case  the  parties  are  not  ready  at  the 
time  of  the  call,  the  cause  may  not  be  reserved  by  the  court, 
but  may  lose  its  place  altogether,  the  taking  a  default  pro  forma 
may  even  be  a  matter  of  accommodation  to  both  parties.  An 
order  opening  that  default,  by  consent  or  otherwise,  will  have 
the  effect  of  replacing  the  cause  on  the  term  calendar,  and,  if 
that  course  be  agreed  on,  and  the  technical  costs  be  waived,  the 
only  real  expense  will  be  the  clerk's  trial  fee,  which  must  of 
course  be  paid ;  whilst  the  practical  convenience,  in  accelerat- 
ing the  real  trial  of  the  cause,  may  be  very  great. 

In  general,  however,  the  courts  are  not  adverse  to  postpone 
causes,-  from  one  day  of  the  same  term  to  another,  on  sufficient 
cause  shown.  It  will  of  course  be  necessary  for  the  counsel, 
or  for  one  at  all  events,  to  attend  for  that  purpose,  at  the  sitting 
of  the  court.  The  accommodation  rests,  however,  entirely  with 
the  presiding  judge,  whose  discretion  on  the  subject,  either  as  to 
granting  the  request,  or  requiring  formal  proof  of  the  reasons 
alleged  for  the  postponement  is,  of  necessity,  uncontrollable. 

§  203.   Inquest. 

Inquest,  as  before  stated,  is  of  a  nature  analogous  to,  and 
yet  distinct  from  that  of  default,  inasmuch  as  it  is  an  ex  parte 


684  TAKING  DEFAULT  OR  INQUEST. 

remedy,  obtainable  by  the  plaintiff  alone,  and  that,  only  in  cases 
virtually  undefended ;  and  this,  by  bringing  on  the  cause  prema- 
turely, and  out  of  its  due  order,  instead  of  waiting  for  its  being 
called  on  in  ordinary  course. 

The  remedy  by  inquest  can  only  be  had  in  default  of  a  suffi- 
cient affidavit  of  merits.  If  such  an  affidavit  be  duly  filed  and 
served  by  the  defendant,  at  any  time  previous  to  the  actual 
taking  of  such  inquest,  the  plaintiff's  right  to  this  remedy  will 
be  gone.  The  nature  and  requisites  of  the  affidavit  of  merits 
have  been  considered  in  a  previous  chapter. 

In  applying  for  an  inquest,  the  plaintiff  must  take  care  that 
the  time  allowed  to  the  defendant,  for  the  purpose  of  amending 
his  answer,  has  previously  elapsed.  If  not,  and  if  the  defend- 
ant afterwards  serve  such  amended  answer  in  good  faith,  and 
within  due  time,  the  inquest  will  be  irregular,  and  will  be  set 
aside  as  such.      Washburn  v.  Herrick,  2  C.  E.  2 ;  4  How.  15. 

An  inquest,  so  obtained,  was  likewise  set  aside  upon  the  ser- 
vice of  an  amended  answer,  in  Griffin  v.  Cohen,  8  How.  451.  the 
good  faith  of  the  amendment  being  sworn  to.  See  likewise, 
Rogers  v.  Rathbwi,  before  cited  under  the  head  of  Default.  In 
Allen  v.  Compton,  on  the  contrary,  8  How.  251,  an  inquest, 
obtained  notwithstanding  the  service  of  such  an  answer,  was 
maintained,  the  answer  appearing  to  have  been  so  amended  for 
delay  only,  and  with  a  view  to  throw  the  cause  over  the  term. 

In  Plumb  v.  Whipple,  7  How.  411,  an  inquest  was,  in  like 
manner,  supported,  though  an  amended  answer  had  been  served, 
the  original  answer  consisting  of  denials  only,  and  containing 
no  new  matter,  and,  as  such,  requiring  no  reply,  and  therefore, 
in  the  opinion  of  the  court,  not  being  amendable  at  all.  It  was 
held,  too,  that  the  right  to  amend  cannot  be  exercised,  so  as 
to  prejudice  proceedings  already  had,  and  that,  therefore,  the 
judgment  suffered  to  be  taken  must  be  allowed  to  stand. 

An  inquest  maybe  taken  at  the  opening  of  the  court,  on  any 
day  after  the  first  day  of  the  term  or  circuit,  for  which  the  cause 
shall  have  been  duly  and  sufficiently  noticed;  for,  if  the  inten- 
tion to  take  a?i  inquest  be  not  expressed  upon  the  notice  of  trial, 
that  notice  will  not  avail.  On  the  second,  or  any  subsequent 
morning  of  term,  therefore,  (lie  plaintiff,  at  the  opening  of  the 
court,  may  apply  t<>  have  the  cause  called  on  for  that  purpose, 
though  such  cause  be  not  on  the  day  calendar,  and  without  re- 
gard to  its  actual  position  on  the  general  list.     If  taken  on  the 


TAKING  DEFAULT  OR  INQUEST.  685 

first  day  of  term,  the  inquest  will  be  a  nullity,  and  will  be  set 
aside  as  such.     Smith  v.  Brown,  1  Duer,  665. 

It  has  been  an  usual  practice  to  take  an  inquest  of  this  de- 
scription before  a  jury,  and,  in  Dickinson  v.  Kimball,  1  C.  R.  83, 
it  was  held  that  one  taken,  after  the  jury  had  been  discharged, 
the  defendant  not  appearing,  was  irregular.  The  latter,  it  was 
said,  might  have  waived  his  right  to  a  jury  by  non-appearance, 
but,  after  the  jury  had  been  discharged,  there  was  no  longer  any 
such  right  to  waive.  The  inquest,  it  was  accordingly  held, 
should,  have  been  taken,  before  the  jury  were  discharged. 

At  first  sight,  this  case  would  seem  to  lead  to  the  conclusion 
that  inquest  must  be  taken  by  a  jury  in  all  cases,  but,  when 
more  closely  examined,  this  does  not  appear  to  be  the  correct 
construction.  In  Haines  v.  Davies,  6  How.  118,  1  C.  E.  (1ST.  S.) 
407,  it  was  decided  that  if,  when  the  case  is  called  on,  the  de- 
fendant does  not  appear,  the  plaintiff  may  then  proceed  to  treat 
such  non-appearance  as  a  waiver  of  trial  by  a  jur}',  under  sec. 
266,  and  may  take  his  inquest  before  the  court  alone  ;  and  that 
there  is  no  difference,  in  respect  of  such  waiver,  between  those 
cases  in  which  the  cause  is  taken  up  out  of  its  order,  and  those 
in  which  a  default  is  taken  on  its  being  regularly  called.  The 
case  must,  however,  be  called  on,  and  the  inquest  taken,  before 
the  jury  are  discharged,  for  the  circuit  or  term,  as,  otherwise, 
there  will  be  no  right  to  waive,  according  to  the  doctrine  laid 
down  in  Dickinson  v.  Kimball,  which  is  so  far  confirmed. 

The  object  of  this  rule  is  to  give  the  defendant  the  opportu- 
nity to  submit  the  case  to  the  jury,  if,  when  the  cause  is  so 
called  on,  he  be  in  attendance  and  appear.  He  has  a  right,  in 
this  event,  to  cross-examine  the  plaintiff's  witnesses,  and  break 
down  his  case,  if  he  can  succeed  in  doing  so.  He  cannot,  though, 
introduce  counter  evidence,  or  prove  an  affirmative  defence  on 
his  own  behalf,  his  right  to  do  so  being  gone  by  default.  It 
would  seem,  however,  that  he  may  take  exceptions  to  the  ad- 
missibility of  the  plaintiff's  evidence,  and  appeal  from  the  deci- 
sion thereon,  though  the  question  is  by  no  means  free  from 
doubt,  whether  he  can  do  so  on  a  judgment  by  default.  See 
Kanouse  v.  Martin,  3  Sandf.  S.  C.  R.  653.  His  easier  and  more 
obvious  course,  where  any  real  defence  exists,  will  evidently  be 
a  motion  to  set  aside  the  inquest. 

The  plaintiff,  on  his  part,  may,  it  would  seem,  submit  to  a 
nonsuit,  if  the  defendant  appear,  and  it  be  thought  advisable. 


QSQ  TAKING  DEFAULT  OR  INQUEST. 

He  must  of  course  be  prepared  with  precisely  the  same  evi- 
dence as  hereinbefore  indicated,  with  reference  to  a  default 
taken  on  the  cause  being  regularly  called  on. 

Where  a  partial  set-off  has  been  pleaded  by  the  defendant, 
and  no  reply  has  been  put  in,  the  plaintiff  cannot  take  an  in- 
quest for  the  whole  of  his  original  demand,  but  must  allow  the 
set-off,  and,  if  he  omit  to  do  so,  his  proceedings  will  be  set  aside. 
Nor  is  it  necessary  for  the  defendant  to  make  an  affidavit  of 
merits,  to  entitle  him  to  protection  in  this  respect.  Potter  v. 
Smith,  9  How.  262. 

A  remedy,  analogous  to  inquest  in  some  respects,  though  in 
others  distinguishable,  inasmuch  as  the  case  comes  on  in  a 
contested  form,  and  not  ex  parte,  is  provided  as  regards  the 
first  district  of  the  Supreme  Court,  by  the  recent  special  Eules 
on  the  subject,  already  noticed  under  the  head  of  proceedings 
with  a  view  to  a  speedier  decision.  The  proceeding  is,  in  fact, 
identical  with  the  English  practice  in  chancery,  of  setting  apart 
one  morning  in  each  week  for  hearing  causes,  certified  by  coun- 
sel to  be  "  short  causes,"  in  preference  to  those  on  the  regular 
calendar.  The  practice  is  highly  convenient,  and  eminently 
calculated  to  further  the  ends  of  justice,  above  all  in  a  district 
in  which,  as  in  that  in  question,  the  calendars  are  crowded. 


§  204.    Opening  Default,  or  Inquest. 

If  inquest  or  default  be  taken  against  cither  party  unawares, 
he  will,  as  a  general  rule,  be  admitted  to  prosecute  or  defend, 
under  the  enabling  powers  of  sec.  174,  provided  he  satisfies  the 
court,  of  the  existence  of  a  bond  fide  defence  or  cause  of  action, 
ami,  that  the  adverse  proceeding  has  been  obtained  against  him, 
through  "  mistake,  inadvertence,  surprise,  or  excusable  neglect." 
He  must,  of  course,  in  the  case  of  inquest,  swear  to  merits,  in 
the  usual  form. 

The  application  for  this  purpose  must  be  made  on  the  usual 
not.ice.  An  order  to  show  cause  why  the  inquest  or  default 
should  not  be  set  aside,  will  probably  be  found  the  more  con- 
venient form,  as,  by  adopting  that  mode,  an  interim  stay  of 
proceedings  on  the  judgment  entered,  or  to  be  entered  up,  may 
be  obtained,  as  part  of  the  order.  In  this  case,  a  copy  of  the 
affidavit  on  which  the  order  has  been  obtained  must  be  served 


TAKING  DEFAULT  OR  INQUEST.  687 

with  it,  in  the  usual  manner.  It  is,  of  course,  equally  competent 
for  the  defendant  or  party,  against  whom  judgment  has  been 
entered,  upon  inquest  or  default,  to  move  to  set  aside  such  pro- 
ceeding, as  irregular,  on  affidavit  of  the  irregularities  committed, 
and  that,  either  upon  a  notice  or  order  to  show  cause,  as  above. 
The  opposite  party  may  meet  such  application  by  counter  affi- 
davits, in  order  to  show  that  the  inquest  has  been  regular,  and 
that  no  real  cause  had  been  shown  for  opening  the  order. 

If  default  or  inquest,  duly  obtained,  be  opened  or  set  aside, 
for  the  purpose  of  allowing  the  opposite  party  to  try  the  case 
on  the  merits,  payment  of  costs  will  be  imposed  on  such  party, 
as  a  condition  precedent;  and  it  will  likewise  be  competent  for 
a  plaintiff  who  has  obtained  such  judgment,  to  apply  to  the 
court,  that  proper  restrictions  may  be  imposed  on  the  defence 
to  be  set  up.  See  observations  in  the  last  chapter,  in  respect 
to  the  analogous  case  of  granting  of  leave  to  plead  over,  after 
the  allowance  of  a  demurrer.  If,  however,  the  inquest  or 
default  be  set  aside,  on  the  ground  of  irregularity,  costs  will,  of 
course,  fall  upon  the  irregular  party. 

The  order  to  be  made  on  the  application,  as  above,  must  be 
duly  entered,  and  a  copy  served  by  the  prevailing  party.  If 
the  inquest  be  set  aside,  or  the  default  be  opened  upon  terms, 
care  must  be  taken  that  those  terms  are  fully  complied  with 
forthwith,  or,  at  all  events,  within  the  time  limited  by  the  court, 
a  reasonable  limitation  to  which  effect  should  always  be  asked 
for  by  the  adverse  party.  On  compliance  with  these  terms,  the 
cause  is  restored  to  the  position  in  which  it  previously  stood, 
and  must  be  noticed  and  brought  on  for  trial  accordingly.  On 
failure  in  that  compliance,  the  order  setting  aside  the  inquest  or 
default  becomes  a  nullity,  and  the  opposite  party  will  gain  the 
right  to  proceed  with  the  entry  and  enforcement  of  the  judg- 
ment, as  if  it  had  never  been  made. 


688  TRIAL  BY  JURY. 

CHAPTER     IV. 

TRIAL    BY    JURY. 


§  205.   Constitution  of  Jury, — General  Form  of  Trial. 

The  practice  on  this  subject  is  but  slightly  affected  by  the 
Code,  which  merely  provides  as  to  the  form  of  verdict  and  its 
consequences,  and  leaves  the  composition  and  duties  of  the  jury, 
and  the  mode  of  trial  before  them,  practically  untouched.  To 
enter,  therefore,  into  details  on  these  latter  subjects,  would  mili- 
tate with  the  plan  laid  down  at  the  outset. 

The  provisions  of  the  Eevised  Statutes,  as  to  the  return  and 
summoning  of  jurors,  as  to  special  or  struck  juries,  and  as  to  the 
trial  before  the  jury,  when  duly  impanelled,  will  be  found  in 
articles  2,  3,  and  4,  of  title  IV.,  chap.  VII,  part  III.,  of  those 
statutes,  2  K.  S.  411  to  421.  In  connection  with  the  summoning 
and  impanelling,  see  the  recent  case  of  Porter  v.  Cass,  7  How. 
441.  The  usual  course  in  these  matters  has  been  so  entirely 
settled,  that  decisions  affecting  any  important  alterations  are 
rare,  and  the  recent  reported  cases  work  no  change  in  the  law 
as  to  the  composition  and  duties  of  the  jury,  in  a  practical  point 
of  view,  and  little,  if  any,  alteration  in  relation  to  the  progress 
of  the  trial  before  them,  prior  to  the  delivery  of  their  verdict. 
In  relation  to  the  law  as  to  challenges  to  jurors,  &c,  the  recent 
cases  of  The  President  of  the  Waterford  and  Whitehall  Turnpike  v. 
The  Peqplet  U  Barb.  161;  and  The  People  v.  Aickinsm,  7  How. 
211,  may  be  referred  to.  Objections,  on  the  above  grounds, 
must  be  taken  at  the  time,  and  before  the  trial  proceeds,  or 
they  will  be  waived  altogether.    Dayharsh  v.  Jfinos,  1  Seld.  531. 

Referring,  then,  to  the  works  on  the  old  practice,  for  all 
details  on  these  points,  and  assuming  that  the  jury,  whether 
common  or  special,  have  been  duly  summoned  and  impanelled; 
that,  t  he  parties  have  exhausted  their  rights  of  challenge,  whether 
peremptory  or  otherwise,  ami  either  to  the  array  or  to  the  polls; 
that  a  taleSf  if  necessary,  has  been  prayed;  that  all  objections  in 
relation  to  the  composition  of  the  jury  have  been  raised  and 


TRIAL  BY  JURY. 

disposed  of;  and  that  the  required  number  of  jurors  have  been 
duly  chosen  and  sworn,  according  to  the  former  and  still  sub- 
sisting practice ;  we  now  come  to  consider  the  proceedings 
before  the  jury,  so  constituted.  The  old  rules,  that  the  counsel 
of  the  party  who  sustains  the  affirmative  issue,  is  first  heard  in 
opening,  and  last  in  summing  up  the  case,  and  also  as  to  the 
general  conduct  of  the  cause  during  the  hearing,  are  equally 
unaltered,  whether  by  the  Code,  or  by  the  recent  decisions. 

The  rules  of  court,  restricting  the  arguments  of  counsel  to 
two  hours  each,  and  also  providing  that  not  more  than  one  on 
each  side  shall  examine  or  cross-examine  a  witness,  or  sum  up 
the  cause  to  the  jury,  unless  by  special  order  of  the  court,  and 
that  counsel  shall  stand  while  examining  a  witness,  and  shall 
not  take  minutes  of  testimony,  unless  the  court  shall  otherwise 
order,  have  been  noticed  in  the  preliminary  chapter,  as  to  trial 
in  general. 

The  circumstances  under  which  application  may  be  made  for 
a  postponement  of  the  trial,  when  necessary,  and  the  conditions 
likely  to  be  imposed  on  granting  such  application,  have  been 
before  considered.  A  similar  application  may  be  made  at  the' 
outset,  or  during  the  progress  of  the  trial,  when,  through  sur- 
prise or  otherwise,  it  proves  indispensable;  though,  of  course, 
this  privilege  will  not  be  granted,  at  that  stage  of  the  proceed- 
ing, on  any  other  than  on  serious  and  important  grounds,  and 
on  a  perfectly  bond  fide  application. 

The  old  practice,  as  to  moving  for  a  nonsuit,  either  on  the 
plaintiff's  statement,  or  on  his  proofs,  when  he  rests  his  case, 
including  the  discretionary  powers  of  the  court  to  allow  or  to 
refuse  permission  to  enter  into  further  evidence,  after  such  rest- 
ing ;  as  to  the  summing  up,  by  the  counsel  on  both  sides ;  as  to 
the  charge  of  the  judge;  as  to  the  power  of  counsel  to  request 
him  to  charge  upon  any  particular  point,  to  any  particular  effect ; 
as  to  the  exceptions  which  may  be  taken  to  such  charge,  and 
the  necessity  of  taking  them  at  the  time  of  its  delivery ;  as  to 
the  framing  of  written  issues,  where  expedient;  as  to  the  retire- 
ment and  conduct  of  the  jury;  and,  likewise,  as  to  the  powers 
of  withdrawal  of  a  juror,  or  of  submitting  to  a  nonsuit  on  the 
part  of  the  plaintiff,  before  the  jury  have  left  the  court,  with 
the  advantages  of  that  course,  under  certain  circumstances, 
remains  entirely  unaltered  by  the  Code,  or  by  the  recent 
decisions. 

44 


690  TRIAL  BY  JURY. 

§  206.    Incidental  Points  as  to   Trial. 

Adverse  Nonsuit.'] — The  granting  a  nonsuit,  when  moved  for, 
rests  entirely  in  the  discretion  of  the  judge,  and  a  refusal  on  his 
part  will  be  no  ground  of  error,  when  there  is  any  evidence 
whatever  on  a  question  of  fact,  on  which  to  go  to  the  jury. 
Thompson  v.  Dickevson,  12  Barb.  108.  See  Bvonson  v.  Wiman, 
Court  of  Appeals,  30th  December,  1852. 

If,  however,  there  is  a  complete  failure  of  proof,  so  that,  as  a 
matter  of  law,  the  plaintiff  cannot  recover,  it  is  the  duty  of  the 
judge  to  grant  the  motion,  and  his  refusal  to  do  so  will  be  error. 
Carpenter  v.  Smith,  10  Barb.  663.  See,  likewise,  Having  v.  The 
New  Yovk  and  Evie  Railroad  Company,  13  Barb.  9. 

The  practice,  in  the  English  courts,  of  entering  a  verdict  for 
the  plaintiff,  but  with  leave  to  the  defendant  to  move  for  a  non- 
suit, though  not  unknown,  is  unusual  in  this  State.  The  taking 
a  verdict,  subject  to  the  opinion  of  the  court,  is  the  more  com- 
mon course.     Downing  v.  Mann,  9  How.  204. 

In  Bennett  v.  The  Amevican  Avt  Union  Company,  5  Sandf.  614, 
10  L.  0. 132,  it  was  held,  in  general  terms,  that  objections  to  the 
right  of  the  plaintiff  to  maintain  a  suit,  cannot  be  so  waived 
by  the  consent  of  the  parties,  as  to  deprive  the  court  of  the 
power,  or  release  it  from  the  duty  of  considering  them ;  which 
principle  is  doubtless  capable  of  application  to  cases,  in  which 
the  defendant  may  be  entitled  to  move  for  a  nonsuit,  but  might 
wish  to  waive  his  right. 

w  One  of  several  defendants,  sued  for  a  tort,  is  entitled  to  a 
verdict,  before  the  case  of  his  co-defendants  is  submitted  to  the 
jury,  if  the  testimony  be  such,  that,  if  he  were  sued  alone,  he 
would  be  entitled  to  a  nonsuit.  This  is  not  matter  of  discre- 
tion, but  of  right."    Dominiclc  v.  Eacker,  3  Barb.  17. 

In  relation  to  a  nonsuit  for  misjoinder  of  parties,  see  Spencer 
v.  Wheelock,  1 1  L.  O.  329.  The  correctness  of  this  decision 
Beems,  however,  to  be  questionable.  See  heretofore,  under  the 
head  of  Demurrer. 

I 'mvin.ee  of  Court  and  Jury  rcsprriiv  ///.] — -The  general  rule 
is,  that  all  matters  of  law  rest  with  the  court,  and  matters  of 
fact  with  the  jury,  to  decide:  the  latter  acting  under  the  direc- 
tion of  the  judge,  m  relation  to  questions  of  law,  bearing  upon 
the  facts  brought  before  them. 


TRIAL  BY  JURY.  691 

When  the  facts  of  the  case  are  in  any  wise  contested,  the 
question  rests  with  the  jury,  and  cannot  be  withdrawn  from 
them.  See  Scott  v.  Pentz,  5  Sandf.  572  ;  Thompson  v.  Dickerson, 
12  Barb.  108,  above  cited;  Gates  v.  Brower,  Court  of  Appeals, 
31st  Dec,  1853.    See,  likewise,  Borrodaile  v.  Leek,  9  Barb.  611. 

Where,  on  the  contrary,  the  facts  are  admitted  or  proved 
without  contestation,  and  the  question  is  one  of  construction 
merely,  or  of  the  law  as  applicable  to  those  facts,  the  decision 
rests  with  the  judge,  and  the  jury  are  bound  to  follow  his 
directions.  See  Matthews  v.  Beach,  5  Sandf.  256 ;  Cook  v.  Litch- 
field,  5  Sandf.  330 ;  10  L.  O.  330 ;  affirmed  by  Court  of  Appeals. 
31st  Oct.,  1853.  See,  also,  Carpenter  v.  Smith,  and  Having  v. 
The  New  York  and  Erie  Railroad  Company,  above  cited,  in  rela- 
tion to  nonsuit.  If  the  judge  allow  a  question,  properly  of  law 
alone,  to  go  to  the  jury  upon  the  facts,  it  will  be  error.  Carpenter 
v.  Sheldon,  5  Sandf.  77;  Fay  v.  Grimsteed,  10  Barb.  321 ;  Bulkeley 
v.  Smith,  11  L..  O.  300;  Gale  v.  Wills,  12  Barb.  84;  or,  if  he 
make  a  qualification  in  his  charge,  which  is  not  authorized  by 
the  evidence.  (Same  cases.)  Nor  will  a  refusal  to  submit  to  the 
jury,  a  question  prima  facie  clear,  and  not  contradicted  or  ex- 
plained, be  error  on  the  part  of  the  judge.  The  People  v.  Cook, 
Court  of  Appeals,  12th  April,  1853.  The  points  above  taken 
are  clearly  established  by  numerous  prior  decisions ;  but  the 
above  are  mentioned,  as  being  the  most  recent  bearing  upon 
them.  With  regard  to  the  relative  provinces  of  the  judge  and 
jury,  on  a  mixed  question  of  law  and  of  fact,  the  judge's  power 
to  comment  on  the  facts,  and  the  propriety  of  an  hypothetical 
charge,  see  Bulkeley  v.  Keteltas,  4  Sandf.  450. 

In  relation  to  the  course  to  be  pursued,  on  the  judge's  answer 
to  inquiries  made  by  the  jury,  see  Stroud  v.  Frith,  11  Barb.  300. 
It  was  held  by  the  Court  of  Appeals,  in  Howland  v.  Willets, 
31st  Dec,  1853,  that  it  is  not  error  for  the  judge  to  allow  the 
jury,  when  they  retire  for  deliberation,  to  take  with  them  a 
deposition  read  on  the  trial. 

Propositions  or  Bequests  to  charge.'] — It  remains,  as  heretofore, 
an  usual  practice  for  counsel  to  submit  to  the  judge,  if  thought 
expedient,  either  at  the  close  of  the  argument  or  at  the  conclu- 
sion of  his  charge,  specific  propositions,  with  a  view  to  their 
adoption  by  him  in  his  instructions  to  the  jury.  If  such  pro- 
positions be  sustainable,  it  is  the  judge's  duty  to  notice  and  to 


692  TRIAL  BY  JURY. 

charge  upon  them ;  and,  if  he  omit  to  notice  them,  or  charge 
imperfectly  upon  the  point  requested,  it  will  be  error,  and  an 
exception  will  lie.  The  mode  of  doing  so  rests,  however,  en- 
tirely in  his  discretion ;  and  it  is  by  no  means  positively  incum- 
bent upon  him,  to  submit  the  propositions  to  the  jury  ipsissimis 
verbis,  or  even  to  notice  them  in  detail,  provided  he  give  faith- 
fully their  general  import.  See  Bulkeley  v.  Keteltas,  4  Sandf. 
450 ;  Sherman  v.  Wakeman,  11  Barb.  254,  affirmed  by  Court  of 
Appeals,  7th  Oct.,  1853. 

The  requests  made  must,  however,  be  made  in  such  form,  as 
that  the  judge  may  properly  charge  in  the  terms  of  that  re- 
quest without  qualification,  or  his  refusal  to  do  so  will  not  be 
error.    Bagley  v.  Smith,  Court  of  Appeals,  13th  July,  1853. 

If  the  points  submitted  be  clearly  tenable,  a  refusal  to  charge 
upon  them,  or  an  imperfect  charge  in  relation  to  them,  will  be 
ground  for  a  new  trial.  Carpenter  v.  Slilwell,  12  Barb.  128 ; 
Gale  v.  Wills,  12  Barb.  84. 

Where,  however,  the  questions  attempted  to  be  raised  are 
evidently  untenable,  the  judge  will  be  right  in  refusing  to 
charge  the  jury,  in  the  manner,  or  to  the  purport  requested. 
Lyon  v.  Marshall,  11  Barb.  241.  Nor  is  a  judge  bound  to 
charge  upon  a  hypothetical  case,  which  there  is  no  evidence  to 
support.     The  Mayor  of  New  York  v.  Price,  5  Sandf.  543. 

In  the  absence  of  positive  imputation  against  it,  the  charge 
of  the  judge  will,  in  all  cases,  be  supported.  Parsons  v.  Brown, 
15  Barb.  590.  The  same  case  lays  down,  strongly,  the  neces- 
sity of  propositions  of  the  above  nature,  being  submitted  to  the 
judge  at  the  time.  In  the  absence  of  such  request,  the  verdict 
will  not  be  disturbed,  for  any  point  of  omission,  or  otherwise 
than  for  error,  affirmatively  shown. 

Exceptions  and  Objections^ — The  doctrine  of  exceptions  in 
general,  as  regards  points  of  detail,  will  be  considered  in  a  sub- 
sequent chapter,  under  the  head  of  New  Trial.  A  few  points 
mny,  however,  be  noticed  advantageously  at  the  present  junc- 
ture. 

I ,  -j >t i«  >n  -,  as  such,  and  objections  on  points  of  form,  or  as 
to  the  admissibility  of  evidence,  must  be  taken  at  once,  at  the 
time  the  objection  first  arises.  II'  omitted  to  be  so  taken,  they 
will  afterwards  be  unavailable.  Sec  this  subject  fully  consi- 
dered, and  various  cases  cited,  in  the  introductory  chapter  of 
this  book,  on  trial  in  general. 


TRIAL  BY  JURY.  693 

Exceptions,  when  taken,  must  be  direct  and  specific,  or  they 
will  be  ineffectual  for  all  practical  purposes. 

A  general  exception  to  a  charge,  containing  distinct  proposi- 
tions, is  unavailing,  unless  the  party  can  show  that  each  pro- 
position is  erroneous,  and  to  his  prejudice.  Haggart  v.  Morgan, 
1  Seld.  422.  See,  to  the  same  effect,  Decker  v.  Mathews,  5 
Sandf.  439,  p.  446 ;  Jones  v.  Osgood,  2  Seld.  233 ;  Stroud  v. 
Frith,  11  Barb.  300;  Van  Kirk  v.  Wilds,  11  Barb.  520;  Wager 
v.  Ide,  14  Barb.  468 ;  Murray  v.  /Smith,  1  Duer,  412.  Nor  is 
the  case  altered,  by  taking  the  exception  to  the  whole  charge, 
"and  to  each  and  every  part  thereof."  So,  too,  a  general  excep- 
tion will  be  wholly  unavailing,  where  no  error  of  law  has  been 
committed,  and  the  whole  dispute  is  on  a  question  of  fact,  left 
to  the  jury.  Meakim  v.  Anderson,  11  Barb.  215.  An  exception 
to  a  question  put,  will  not  be  available,  unless  material  testi- 
mony be  given  in  answer  to  it,  embraced  within  the  objection. 
Howland  v.  Willets,  Court  of  Appeals,  31  Dec.  1853.  See  5 
Sandf.  219.  Where  the  exceptions  taken  are  of  an  important 
nature  it  will  be  expedient  to  apply  at  the  time  of  the  trial  for 
an  order,  under  sec.  265,  that  they  be  heard  in  the  first  instance 
at  the  general  term.  See  this  subject  hereafter  considered,  and 
the  cases  cited,  in  a  subsequent  chapter,  under  the  head  of  New 
Trial. 

Calling  the  Plaintiff,  &c. —  Voluntary  Nonsuit.'] — It  is  no  longer 
necessary  that  the  plaintiff  should  be  called,  when  the  jury 
return  to  the  bar  to  deliver  their  verdict.  See  Rule  23.  The 
same  rule  also  debars  the  plaintiff  from  the  right  to  submit  to 
a  nonsuit,  after  the  jury  have  once  gone  from  the  bar  to  con- 
sider their  verdict.  At  any  time  prior  to  their  retirement  he 
may  do  so,  as  under  the  old  practice.  The  advantages  of  this 
course,  in  the  event  of  a  failure  of  proof,  on  the  part  of  the 
plaintiff,  are  obvious,  as,  by  so  doing,  his  rights,  if  any,  remain 
available  in  a  fresh  action,  whilst,  in  the  event  of  an  adverse 
verdict,  the  question  has  become  res  adjudicata. 


§  207.    Verdict,  and  its  incidents. 

Thus  far,  the  old  practice  on  a  trial  by  jury  remains  practi 
cally  unaltered  by  the  code.     On  the  subject  of  a  verdict,  how 


694  TRIAL  BY  JURY. 

ever,  the  latter  contains  express  provisions,  partly  in  declaration 
of,  and  partly  in  substitution  for  the  former  law  on  the  subject. 

Statutory  Provisions — General  and  Special  Verdict,  Distinction 
between.] — In  the  first  place,  the  distinction  between  general 
and  special  verdicts  is  laid  down  by  sec.  260  as  follows : 

§  260.  A  general  verdict  is  that,  by  which  the  jury  pronounce  gene- 
rally upon  all  or  any  of  the  issues,  either  in  favor  of  the  plaintiff  or 
defendant.  A  special  verdict  is  that,  by  which  the  jury  find  the  facts 
only,  leaving  the  judgment  to  the  court. 

Assessment  of  Value  or  Damages.  Special  Verdict.'] — The  nature 
and  effect  of  a  special  verdict,  and  the  power  of  a  jury  to  assess 
the  damages  of  the  party  prevailing,  whether  plaintiff  or  defend- 
ant, are  next  denned  as  under,  by  the  three  following  sections. 

§  261.  In  an  action  for  the  recovery  of  speci6c  personal  property,  if 
the  property  have  not  been  delivered  to  the  plaintiff,  or  the  defendant 
by  his  answer  claim  a  return  thereof,  the  jury  shall  assess  the  value  of 
the  property,  if  their  verdict  be  in  favor  of  the  plaintiff,  or,  if  they  find 
in  favor  of  the  defendant,  and  that  he  is  entitled  to  a  return  thereof; 
and  may  at  the  same  time  assess  the  damages,  if  any  are  claimed  in 
the  complaint  or  answer,  which  the  prevailing  party  has  sustained,  by 
reason  of  the  detention,  or  taking  and  withholding  such  property.  In 
every  action  for  the  recovery  of  money  only,  or  specific  real  property, 
the  jury,  in  their  discretion,  may  render  a  general  or  special  verdict. 
In  all  other  cases,  the  court  may  direct  the  jury  to  find  a  special  ver- 
dict in  writing,  upon  all  or  any  of  the  issues;  and  in  all  cases  may 
instruct  them,  if  they  render  a  general  verdict,  to  find  upon  particular 
questions  of  fact,  to  be  stated  in  writing,  and  may  direct  a  written  find- 
ing thereon.  The  special  verdict  or  finding  shall  be  filed  with  the 
clerk,  and  entered  upon  the  minutes. 

§  262.  Where  a  special  finding  of  facts  shall  be  inconsistent  with 
the  general  verdict,  the  former  shall  control  the  latter,  and  the  court 
shall  give  judgment  accordingly. 

§  2G3.  When  a  verdict  is  found  for  the  plaintiff,  in  an  action  for  the 
recovery  of  money,  or  for  the  defendant,  when  a  set-off  for  the  recovery 
of  money  is  established,  beyond  the  amount  of  the  plaintiff's  claim  as 
established,  the  jury  must  also  assesn  the  amount  of  the  recovery;  they 
may  also,  under  the  direction  of  the  court,  assess  the  amount  of  the 
recovery,  when  the  court  give  judgment  for  the  plaintiff  on  the  answer. 
II'  a  set-' ill",  established  at  the  trial,  exceed  the  plaintiff's  demand  so 
established,  judgment  for  the  defendant  must  be  given  for  the  excess; 


TRIAL  BY  JURY.  695 

or,  if  it  appear  that  the  defendant  is  entitled  to  any  other  affirmative 
relief,  judgment  must  be  given  accordingly. 

The  first  of  these  clauses  appears,  as  it  stands  at  present, 
hopelessly  confused,  but  the  erasure  of  a  semicolon,  and  the 
substitution  of  "they"  for  "and,"  after  the  word  "thereof"  in 
the  6th  line,  will  render  it  intelligible,  and  will  doubtless 
express  the  meaning  of  the  legislature.  The  erasure  of  the 
word  "  not,"  which  has  been  suggested,  seems,  on  the  contrary, 
to  increase,  rather  than  obviate  the  present  difficulty. 

The  power  given  by  sec.  261,  to  find  a  general  or  special 
verdict,  in  cases  for  the  recovery  of  specific  real  property,  is  an 
evident  modification  of  the  provisions  of  the  Revised  Statutes, 
as  to  the  verdict  in  ejectment,  in  which  description  of  action,  a 
verdict  can  now  be  taken,  adapted  to  any  peculiar  state  of  the 
title.      Wood  v.  Staniels,  3  C.  R.  152. 

The  trial  by  jury,  of  causes  primarily  triable  by  the  court, 
seems  to  be  contemplated,  in  the  powers  to  direct  a  special  ver- 
dict in  writing,  or  to  give  instructions  to  find  upon  particular 
questions  of  fact,  though,  of  course,  both  these  directions  are 
generally  applicable.  The  difficulties  in  the  way  of  a  trial  by 
jury,  of  causes  of  this  description  seem,  however,  in  most 
instances,  insurmountable,  and  trial  by  the  court  appears  the 
far  more  expedient  course  in  all.  See  these  views  fully 
enforced  in  Alger  v.  Scovffle,  6  How.  131 ;  ICE.  (N.  S.)  303  ; 
and  Wooden  v.  Waffle,  6  How.  145  ;  1  C.  R.  (N.  S.)  392.  The 
difficulties  in  the  way  of  interposing  an  equitable  defence  to  a 
legal  claim,  as  regards  the  trial  of  the  issues  thus  joined,  had 
been  previously  insisted  upon,  in  Hill  v.  McCarthy,  3  C.  R.  49. 

It  is  evident  that,  however  unequivocal  the  abolition  of  the 
distinction  between  actions  at  law  and  suits  in  equity  under 
sec.  69,  some  distinction  must  always  exist  between  cases  of  a 
legal,  and  those  of  an  equitable  nature ;  and  that,  where  legal 
and  equitable  principles  are  in  conflict  in  the  same  case,  sub- 
stantial justice  cannot  be  done,  without  a  mode  of  trial,  adapted 
to  the  due  consideration  of  the  latter.  See  in  particular  Wooden 
v.  Waffle,  above  referred  to,  in  corroboration  of  this  view,  which 
has  already  been  developed,  in  the  chapter  on  the  general  re- 
quisites of  pleading. 

The  power  of  the  jury  to  assess  damages,  in  favor  of  a  de- 
fendant prevailing  on  a  set-off,  to  an  amount  exceeding  the 


696  TKIAL  BY  JURY. 

plaintiff's  claim,  and  those  of  the  court  to  order  judgment 
accordingly,  are  made  clear  by  the  recent  amendment  in  sec. 
263.  Similar  relief  had,  however,  been  previously  granted  in 
these  cases. 

It  will  be  remarked  that,  in  the  event  of  the  general  verdict 
of  the  jury,  and  their  special  finding  on  any  particular  questions 
of  fact  submitted  to  them  being  inconsistent,  the  latter,  under 
sec.  262,  is  always  to  prevail. 

Verdict,  Subject  to  Opinion  of  the  Court.] — The  former  power  of 
the  judge  to  order  a  verdict  to  be  entered  subject  to  the  opinion 
of  the  court  thereon,  which  had  been  swept  away  by  the  Codes 
of  1848  and  1849,  is  restored  by  the  recent  amendment  of  sec.  264. 
The  ulterior  proceedings  under  these  circumstances,  will  be  here- 
after considered,  in  chapter  VIII.  of  the  present  book,  under  the 
head  of  proceedings  by  the  prevailing  part}'. 


§  208.  Entry  and  Consequences  of  Verdict. 

Mitry.] — The  mode  of  procedure,  on  the  return  of  the  jury, 
prepared  to  deliver  their  verdict,  is  thus  prescribed  by  the  earlier 
portion  of  sec.  264  : 

§  204.  Upon  receiving  a  verdict,  the  clerk  shall  make  an  entry  in 
his  minutes,  specifying  the  time  and  place  of  the  trial,  the  names  of  the 
jurors  and  witnesses,  the  verdict,  and  either  the  judgment  rendered 
thereon,  or  an  order  that  the  cause  be  reserved  for  argument,  or  further 
consideration.  If  a  different  direction  be  not  given  by  the  court,  the 
clerk  must  enter  judgment  in  conformity  with  the  verdict. 

Corrections  or  Additions,  where  admissible.'] — If  the  verdict  be 
returned  in  open  court,  and  in  the  presence  of  counsel,  and  the 
jury,  as  is  often  the  ease,  have  fallen  into  manifest  error,  the 
present  is  the  proper  period  for  its  correction.  By  a  reconsider- 
ation <>f  such  errors,  under  the  direction  of  the  judge,  much 
subsequent  trouble,  and  possibly  the  necessity  of  a  new  trial, 
may  be  obviated.  This  observation  of  course  assumes,  that  the 
errors  in  question  have  arisen  from  a  manifest  misapprehension 
on  the  part  of  the  jury,  as  to  the  extent  of  their  functions,  or 
as  to  the  real  nature  of  the  questions  submitted  to  them.  If, 
however,    their    opinion    has    been    regularly    come    to,    on    a 


TRIAL  BY  JURY.  697 

question  of  fact  duly  submitted  to  them,  that  opinion,  however 
manifestly  erroneous,  cannot  be  impeached,  otherwise  than  by 
means  of  a  new  trial.  However  unsatisfactory  it  may  be,  their 
verdict  is  conclusive,  until  such  fresh  trial,  if  granted,  shall 
have  taken  place. 

In  Burhaus  v.  Tibbits,  7  How.  21,  the  verdict  of  the  jury  was 
corrected,  so  as  to  conform  to  the  facts,  and  in  order  to  form 
a  complete  record  on  two  issues  there  tried,  the  one  disposed  of 
by  the  decision  of  the  court,  and  the  other  submitted  to  and 
passed  upon  by  the  jury.  Where,  however,  the  slightest  doubt 
exists  as  to  what  transpired,  or  that  the  whole  case  has  been  in 
fact  disposed  of,  an  amendment  should  not  be  allowed. 

Supplemental  Assessment,  in  Replevin.'] — In  actions  of  replevin, 
the  plaintiff,  if  he  recover  less  than  $50  damages,  should  be 
careful  to  ask  for  an  assessment  of  the  value  of  the  property 
recovered,  with  a  view  to  the  purposes  of  costs,  and  in  order  to 
bring  the '  case  within  the  following  clause,  forming  part  of  sec. 
304:— 

"And,  in  an  action  to  recover  the  possession  of  personal  property, 
if  the  plaintiff  recover  less  than  fifty  dollars  damages,  he  shall  recover 
no  more  costs  than  damages,  unless  he  recovers  also  property,  the  value 
of  which,  with  the  damages,  amounts  to  fifty  dollars.  Such  value  must 
be  determined  by  the  jury,  court,  or  referee,  by  whom  the  action  is 
tried." 

Reservation  for  further  Argument] — The  power  to  reserve  the 
case  "for  argument  or  further  consideration,"  has  formed  part 
of  the  Code  from  its  original  passage,  but,  strange  to  say,  there 
is  no  reported  case  directly  bearing  upon  its  exercise,  though,  in 
cases  where  the  judgment  to  be  entered  is  of  a  complex  nature, 
and  in  many  others,  which  it  would  be  superfluous  to  specify,  it 
is  frequently  acted  upon.  Before  the  last  amendment,  it  might 
be  considered  too,  as  standing  in  the  nature  of  a  substitute  for 
the  now  restored  practice,  of  entering  a  verdict  subject  to  the 
opinion  of  the  court. 

Concluding  Observations.'] — The  total  omission  in  the  two 
former  Codes,  of  any  provisions  as  to  the  granting  of  a  new 
trial  upon  errors  of  fact,  had  been  the  occasion  of  much  doubt 
and  inconvenience.     The  cases  on  the  subject  will  be  cited,  and 


698  TRIAL  BY  COURT. 

the  necessary  observations  made,  in  chapter  VII.  of  the  present 
portion  of  the  work.  For  the  present,  it  is  only  necessary  to 
remark  further,  in  conclusion,  that,  on  the  entry  of  the  verdict, 
the  court  and  jury  fees  must  be  paid  by  the  prevailing  party. 
The  results  of  that  verdict  remain  for  future  consideration. 
Where,  on  the  deliver}'-  of  the  verdict,  it  is  manifest  that  a  new 
trial  will  be  moved  for,  or  an  appeal  taken,  a  stay  of  pro- 
ceedings may  at  once  be  applied  for,  whilst  in  court,  and  may 
probably  be  granted.  The  more  usual  course  is,  however,  to 
make  a  subsequent  application  for  that  purpose,  before  the 
actual  entry  of  the  judgment.  See  this  subject  hereafter  con- 
sidered, in  chapter  VII.  of  the  present  book. 

If  any,  even  the  slightest  intermeddling  or  improper  inter- 
ference take  place  with  the  jury,  during  the  trial,  the  verdict 
will  be  set  aside  as  of  course ;  and  this,  whether  that  inter- 
meddling has  or  has  not  been  productive  of  any  actual  effect. 
Reynolds  v.  Champlain  Transportation  Company,  9  How.  7. 


CHAPTER    V. 

TRIAL    BY   THE   COURT. 


§  209.      Trial  by  Court,  Nature  and  incidents  of. 

Where  primarily  appropriate.] — All  issues  of  fact,  not  pro- 
perly triable  by  a  jury,  [See  sections  252  and  254  of  Code,] 
and  therefore,  as  a  general  rule,  the  whole  class  of  equitable 
causes,  may  be  considered  as  falling  within  the  present  category, 
though,  as  before  remarked,  these  last  may  be  submitted  to  a 
jury,  if  the  parties  choose,  and  have  been  so,  in  some  few  cases. 

By  yjaiver  or  consent.] — Independent  of  the  above  description 
of  cases,  which  more  peculiarly  call  for  the  present  form  of 
trial,  any  issues,  of  whatever  nature,  may  be  so  brought  for- 
ward for  decision,  by  consent.  The  following  provisions,  as 
contained  in  sec.  2G6,  are  unequivocal  upon  this  point. 


TRIAL   BY  COURT.  699 

§  266.  Trial  by  jury  may  be  waived  by  the  several  parties  to  an 
issue  of  fact,  in  actions  on  contract ;  and,  with  the  assent  of  the  court, 
in  other  actions,  in  the  manner  following : 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent,  in  person  or  by  attorney,  filed  with  the 
clerk. 

3.  By  oral  consent  in  open  court,  entered  in  the  minutes. 

It  will  be  observed  that  it  is  only  in.  actions  arising  out  of 
contract,  that  this  waiver  can  take  place  as  of  course.  In 
others,  the  assent  of  the  court  is  necessary  ;  and,  in  fact,  in 
actions  sounding  in  tort,  or  where,  for  any  cause,  damages  re- 
quire to  be  assessed,  trial  bj  jury  is  the  proper  form,  and  the 
court  may  very  possibly  refuse  to  dispense  with  it. 

The  waiver  of  trial  by  jury,  by  failure  to  appear,  has  already 
been  considered,  under  the  head  of  Inquest  and  Default.  The 
present  observations  apply  only  to  cases  where  an  actual  trial 
takes  place,  or  is  intended,  and  it  is  the  desire  of  the  parties 
that  such  trial  should  be  had  by  the  court,  and  not  by  the  jury. 

In  these  cases,  it  will  obviously  be  most  convenient  to  obtain 
a  written  consent,  and  file  it  with  the  clerk  beforehand,  and 
then  to  set  down  and  notice  the  cause  accordingly,  upon  the 
Special  Term  Calendar,  or  otherwise,  as  may  be  the  practice  in 
the  particular  court  or  district.  In  the  Common  Pleas,  this 
mode  of  setting  down  the  cause  is  made  the  subject  of  special 
provision,  by  Eule  7,  of  June,  1848,  and  the  causes  thus  set 
down  are  to  be  placed  in  a  separate  part  of  the  calendar.  The 
form  of  waiver  by  oral  consent  in  open  court,  seems  more  pecu- 
liarly applicable  to  those  cases  in  which  the  parties  change 
their  intentions  at  the  last  moment,  and  after  the  cause  has 
actually  been  called  on,  in  its  order  on  the  circuit  or  trial 
term  calendar,  a  case  of  comparatively  infrequent  occurrence. 

Course  of  Trial.] — The  general  course  of  the  trial  before  a 
single  judge  is  practically  the  same  as  that  before  a  jury, 
"  mutatis  mutandis."  The  case  is  opened,  proved,  argued, 
summed  up,  and  any  interlocutory  objections  or  exceptions 
taken  and  noted  in  the  same  manner,  and  the  general  conduct 
of  the  cause  is  identical. 

The  same  restrictions,  as  to  the  limitation  and  duration  of 
the  arguments  of  counsel,  are  applicable  to  this  mode  of  trial, 
as  in  other  cases.  See  Rules  of  Court,  as  noticed  in  introduc- 
tory chapter. 


700  TRIAL  BY  COURT. 

Decision  of  Court] — In  the  nature,  however,  of  the  decisions 
of  the  court,  and  in  the  mode  in  which  that  decision  is  given,  a 
material  distinction  exists.  The  verdict  of  the  jury  must  be 
simultaneous  with,  or,  at  least,  immediately  consequent  upon 
the  trial  of  the  issue  by  them.  Time  for  consideration  is,  on 
on  the  contrary,  given  to  the  court  by  sec.  267,  which  runs  as 
follows : 

§  267.  Upon  a  trial  of  a  question  of  fact  by  the  court,  its  decision 
shall  be  given  in  writing,  and  filed  with  the  clerk,  within  twenty  days 
after  the  court  at  which  the  trial  took  place.  Judgment  upon  the 
decision  shall  be  entered  accordingly. 

Of  course,  this  power  does  not  exclude  the  right  of  the 
judge  who  tries  the  cause,  to  give  an  oral  opinion  at  the  close 
of  the  trial,  in  case  he  does  not  require  the  time  here  allowed 
for  deliberation  ;  and,  although  the  question  has  been  mooted, 
it  seems  now  settled  that  his  oral  direction,  entered  in  form 
upon  the  clerk's  minutes,  is  a  sufficient  decision  of  the  cause, 
and  a  sufficient  authority  for  the  consequent  entry  of  judgment. 

In  The  People  v.  Dodge,  5  How.  47,  it  was  held  that  the 
period  of  twenty  days  above  prescribed,  was  merely  directory; 
and,  the  decision  in  that  case  having  been  made  by  the  judge, 
but  accidentally  prevented  from  being  filed  in  due  time,  it  was 
held  that  he  had  power  to  file  such  decision  afterwards,  and 
that  a  mandamus  might  issue  to  compel  him  to  do  so. 

The  decision  of  the  court,  when  so  reserved,  is  not  analogous 
to  the  verdict  of  a  jury,  as  regards  the  decease  of  the  plaintiff, 
subsequent  to  the  actual  hearing.  In  Elite  v.  Moyer,  on  the 
contrary,  8  How.  244,  judgment  was  ordered  in  such  a  case,  to 
be  entered  nunc  pro  tunc,  as  of  the  date  of  the  original  hearing; 
the  plaintiff  having  died  two  days  subsequently,  and  before  the 
decision  was  pronounced. 

In  giving  a  decision  of  this  description,  the  judge  is  not 
bound  to  set  forth,  as  in  a  special  verdict,  all  the  facts  of  the 
case.  So  far  as  questions  of  fact  arc  concerned,  he  fulfils  his 
duty,  by  determining  the  issues  which,  in  his  opinion,  are 
material.     Ally.  <!>  nl  v.  The  Mayor  of  New  York,  12  L.  0. 17. 

The  decision  of  the  judge,  in  these  cases,  being  usually 
given  in  writing,  and  filed  with  the,  clerk,  instead  of  being  de- 
livered in  tlie,  presence  of  the  parties,  the  taking  of  exceptions 
to  that  decision  at  the  time  of  its  delivery,  is  necessarily  im- 


TRIAL  BY  REFEREES.  701 

practicable.  By  section  268,  a  special  power  of  excepting,  on 
matters  of  law,  is,  therefore,  given  to  the  parties,  if  exercised 
within  ten  days  after  notice  in  writing  of  such  judgment.  The 
decision  may  also  be  reviewed  on  matters  of  fact,  by  means  of 
an  appeal  to  the  general  term,  on  a  case  made  in  the  usual 
manner.  See  the  same  section.  It  is,  of  course,  important, 
with  regard  to  the  above  limitation,  that  the  prevailing  party 
should  give  written  notice  to  his  adversary  of  the  judgment 
pronounced,  as  soon  as  he  possibly  can,  after  the  filing  of  the 
decision  has  come  to  his  knowledge.  In  no  case  should  this 
precaution  be  omitted. 

The  finding  of  a  judge,  upon  an  issue  of  fact  tried  before 
him,  is,  in  all  respects,  equivalent  to  the  verdict  of  a  jury  upon 
the  same  issue,  and  is  to  be  so  treated.  See  Osborne  v.  Marquand, 
1  Sandf.  457;  Gilbert  v.  Luce,  11  Barb.  91 ;  Masters  v.  Madison 
County  Mutual  Insurance  Company,  11  Barb.  621,  (p.  633.)  It 
is  therefore  conclusive,  unless  the  weight  of  evidence  against 
it  be  so  ,  great,  that  a  verdict  under  similar  circumstances 
would  be  set  aside.  See,  likewise,  Adsit  v.  Wilson,  7  How.  64, 
in  relation  to  a  justice's  decision  under  similar  circumstances. 


CHAPTER   VI. 

TRIAL,  OR  HEARING  BY  REFEREES. 


§  210.     General  Characteristics. 

Two  Forms  of  Reference.'] — Eeferences  under  the  Code  are 
classifiable  into  two  grand  divisions ;  viz. :  1.  Eeferences  of  the 
whole  issue,  2.  Interlocutory  or  consequential  references.  The 
latter  bear  more  the  character  of  one  to  the  master,  under  the 
old  chancery  practice,  the  former  that  of  a  trial  by  the  court. 
This  distinction  is  clearly  laid  down  in  Graves  v.'  Blanchard,  4 
How.  300,  3  C.  R.  25,  in  the  following  terms:  "A  referee, 
under  the  Code,  is  not  merely  a  substitute  for  the  master  under 
the  former  practice,  but  is  clothed  with  the  power  of  a  judge 
at  special  term.     When  a  specific  question  is  referred  to  him, 


702  TRIAL  BY  REFEREES. 

his  office  resembles  that  of  a  master ;  when  the  whole  issue  is 
referred  to  him,  he  takes  the  place  of  the  court;  his  report 
thereon  stands  as  its  decision,  and  may  be  reviewed  in  like 
manner." 

Wide  though  the  distinction  be,  between  these  two  classes  of 
references,  separately  considered,  the  general  form  of  proceed- 
ing in  both  is,  in  many  respects,  analogous.  In  both,  the 
general  form  of  proceeding,  viz.,  the  appointment  to  attend 
before  the  referee,  the  course  of  proof  and  argument  before  him, 
and  the  nature  and  form  of  the  report  to  be  made,  present  the 
same  general  characteristics.  To  treat  both  separately  would 
involve  much  needless  repetition,  whilst,  on  the  other  hand, 
any  minor  distinctions  are  easy  to  be  noticed,  in  commenting 
on  both,  in  connection  with  each  other.  This  course  has,  ac- 
cordingly, been  adopted. 

Though  selected  by  the  parties,  a  referee  cannot  act  until 
regularly  appointed  by  the  court ;  and,  if  he  assume  to  do  so, 
before  his  regular  appointment  has  taken  place,  all  his  acts  will, 
as  of  course,  be  a  nullity.  Litchfield  v.  Bur  well,  5  How.  341, 
1  C.  E.  (N.  S.)  42,  9  L.  0.  182. 

The  granting  of  references,  and  under  what  circumstances 
this  course  of  proceeding  will  or  will  not  be  appropriate,  have 
been  already  considered  in  preceding  portions  of  the  work,  in 
connection  with  the  subject  of  motions  for  a  reference,  1st.  By 
way  of  accelerating  the  cause,  and  2dly.  At  the  actual  trial.  The 
circumstances  under  which  a  consequential  reference  will  be 
the  appropriate  form  of  procedure,  will  be  hereafter  considered 
in  chap  IV.  of  the  succeeding  book.  The  powers  and  duties 
of  referees,  and  the  mode  of  proceeding  before  them,  when 
duly  appointed,  will  form  the  subject  of  the  present. 

A  reference  to  report  as  to  facts,  for  the  information  of  the 
court,  is  usually  to  one  party  only,  of  the  judge's  selection,  (see 
Conway  v.  Hitching,  9  Barb.  378,  as  to  his  powers  in  this  re- 
spect); those  of  the  whole  issue  arc,  on  the  contrary,  more  or- 
dinarily made  to  three,  chosen  by  the  parties,  or  appointed  by 
the  court,  under  the  powers  in  sec.  273.  In  neither  case,  how- 
ever, is  the  i*ule  imperative,  Inferences  of  the  latter  nature 
arc  frequently  made  to  a  single  party :  whilst,  in  those  of  the 
former  description,  three  are  occasionally,  though  more  rarely 
nominated.  The  question  as  to  the  nomination  and  selection 
of  referees,  has  been  already  considered,  and  the  different  cases 


TRIAL   BY   REFEREES.  703 

cited,  in  chapter  II.  of  book  VIIL,  under  the  head  of  Motion 
for  a  Reference. 


§  211.    Provisions  of  Code,  Powers  of  Referees. 

Statutory  Provisions.'] — The  proceedings  considered  in  this 
chapter,  are  regulated  by  sec.  272  of  the  Code,  in  which  the 
distinction  above  drawn  between  the  two  different  classes  of 
reference  is  clearly  recognized.     It  runs  as  follows  : 

§  272.  The  trial  by  referees  is  conducted  in  the  same  manner,  and  on 
a  similar  notice,  as  a  trial  by  the  court.  They  have  the  same  power  to 
grant  adjournments  as  the  court,  upon  such  trial.  They  must  state  the 
facts  found  and  the  conclusions  of  law  separately,  and  their  decision 
must  be  given,  and  may  be  excepted  to  and  reviewed  in  like  manner, 
but  not  otherwise ;  and  they  may,  in  like  manner,  settle  a  case  or  ex- 
ceptions. The  report  of  the  referees  upon  the  whole  issue  stands  as 
the  decision  of  the  court,  and  judgment  may  be  entered  thereon,  in  the 
same  manner  as  if  the  action  had  been  tried  by  the  court.  When  the 
reference  is  to  report  the  facts,  the  report  has  the  effect  of  a  special 
verdict. 

In  a  subsequent  portion  of  the  Code,  chap.  XIV.,  title  XII. 
of  part  II.,  sec.  421,  the  powers  of  referees  are  thus  further  de- 
clared : 

§  421.  Every  referee,  appointed  pursuant  to  this  act,  shall  have 
power  to  administer  oaths,  in  any  proceeding  before  him,  and  shall 
have  generally  the  powers  now  vested  in  a  referee  by  law. 

Practice  under  Code  before  last  Amendment. — Powers  of  Referees 
as  to  Costs,  tkc.~] — The  mode  of  trial  before  the  referees  when 
appointed,  and  the  effect  of  their  report  upon  an  interlocutory 
reference,  both  which  important  points  had  been  left  totally  un- 
provided for  in  the  measures  orl848  and  1849,  are,  for  the  first 
time,  prescribed  by  the  recent  amendments.  The  courts  had 
however,  been  already  feeling  their  way  to  the  conclusions 
come  to  by  the  legislature. 

All  the  cases  under  the  late  measures,  agreed,  in  fact,  in 
treating  the  form  of  trial  before  referees  of  the  whole  issue,  as 
being  substantially  the  same  as  that  on  a  trial  by  the  court. 
Thus,  in  Langley  v.  Hickman,  1  Sandf.  681,  the  court  refused  to 
entertain  an  application  to  postpone  a  trial  before  referees,  on 


704  TRIAL  BY   REFEREES. 

account  of  the  non-attendance  of  a  witness,  on  the  ground  that 
such  postponement  was  a  matter  peculiarly  within  the  province 
of  the  referees  themselves.  Their  right  to  refuse  to  hear  further 
testimony  upon  any  particular  point,  on  which  sufficient  evi- 
dence has  already  been  given,  is  also  laid  down  in  Green  v. 
Brown,  3  Barb.  119.  In  Schermerhorn  v.  Develin,  1  C.  K.  28, 
the  court,  on  similar  principles,  refused  to  interfere  with  the 
discretion  of  the  referee  as  to  the  admission  or  rejection  of  evi- 
dence, even  though  its  opinion  was  sought  to  be  obtained  at  the 
latter's  own  request;  and,  in  Allen  v.  Way,  7  Barb.  585,  3  C. 
E.  213,  it  was  held  that  the  referee  was  bound  by  the  same 
rules  in  proceedings  before  him,  as  the  court,  upon  the  trial  of 
a  cause.  It  was  accordingly  laid  down,  that  it  is  not  compe- 
tent for  such  referee  to  admit  objectionable  evidence  at  the 
time  ude  bene  esse"  and  afterwards  to  reject  it  in  forming  his 
decision.  His  discretion  over  such  interlocutory  questions 
ceased  with  his  decision  of  them,  or,  at  least,  with  the  actual 
trial  of  the  case  before  him.  He  could  not  review  his  decision 
on  such  questions  afterwards,  in  the  absence  of  the  parties.  In 
Graves  v.  Blanehard,  4  How.  300,  3  C.  E.  25,  before  cited,  the 
same  general  authority  is  laid  down  as  above  mentioned,  in  dis- 
tinct terms,  and  the  right  of  a  referee  of  the  whole  issue  to 
pass  upon  the  question  of  costs,  distinctly  asserted.  This  last 
power  was  doubted  in  Van  Yalkenburgh  v.  Allendorph,  4  How. 
39,  but  on  apparently  unsatisfactory  grounds,  whilst,  in  Luding- 
ton  v.  Toft,  10  Barb.  447,  the  authority  of  Graves  v.  Blanchard 
is  expressly  confirmed,  and  it  is  held  that  the  decision  of  the 
referee  in  this  respect,  will  not  be  supervised  by  the  general 
term,  unless  for  manifest  error. 

In  Gould  v.  Clnqrin,  4  How.  185,  2  C.  E.  107,  and  Howe  v. 
Muir,  4  How.  252,  it  was,  however,  held  that  a  referee  had  no 
power  to  pass  in  any  shape,  upon  the  question  as  to  whether 
an  extra  allowance  ought  or  ought  not  to  be  granted,  under 
sec.  308.  This  conclusion  seems,  however,  to  be  unsustainable 
to  its  full  extent.  Under  rule  82,  the  application  for  this  pur- 
pose can  only  be  made  "to  the  court  before  which  the  trial  is 
had,  or  the  judgment  rendered,"  and  the  decisions  in  reference 
to  that  allowance,  are  almost  all  to  the  effect,  that  the  applica- 
tion for  that  purpose  ought  to  be  made  to  the  judge  who  has 
actuallj  ined  the  can  e ;  for  the  obvious  reason  that  he,  and  he 
alone,  is  competent  to  form  a  judgment  as  to  the  propriety  of 


TRIAL  BY   REFEREES.  705 

that  application,  without  what  would  amount  to  afresh  hearing 
of  the  case.  The  reasoning  in  Graves  v.  Blanchard,  above  cited, 
on  the  analogous  question  of  granting  or  refusing  costs,  where 
they  rest  in  the  discretion  of  the  court,  is,  indeed,  directly  op- 
posed to  this  conclusion,  and  the  fact  that  the  report  of  the 
referees  upon  the  whole  issue  is,  by  express  provision,  to  stand 
as  the  decision  of  the  court,  and  that  judgment  may  be  entered 
thereon  as  of  course,  without  any  further  action  on  the  part  of 
the  delegating  tribunal,  seems  almost,  if  not  entirely,  decisive 
as  to  their  full  power,  at  least  to  certify  their  opinion,  if  not  to 
deal  with  all  minor  and  subsidiary  questions,  during  and  conse- 
quent upon  the  actual  hearing.  The  proper  course  seems  to  be 
that  pointed  out  in  Fox  v.  Gould,  5  How.  278,  3  C.  R  209,  viz., 
to  obtain  the  referee's  certificate  upon  the  facts,  and  then  to 
apply  to  the  court  upon  that  certificate. 

Powers  of  Referees  continued, ,] — Under  sec.  421,  above  cited,  it 
is  provided,  that  a  referee,  under  the  Code,  "  shall  have  gene- 
rally the  powers  now  vested  in  a  referee  by  law."  These  powers 
will  be  found  prescribed  in  article  IV.  title  VI.  chapter  VI.  of 
part  III.  of  the  Revised  Statutes ;  2  R  S.  383  to  386.  The  oath 
to  be  taken  by  such  referees,  previous  to  hearing  testimony,  is 
prescribed  by  sec.  44  of  that  article;  and  the  party  having  the 
carriage  of  the  reference,  should,  of  course,  see  that  this  condi- 
tion precedent  has  been  properly  complied  with. 

This  last  provision  seems,  however,  to  be  only  applicable  to 
references  of  the  whole  issue,  and  not  to  those  of  an  interlocu- 
tory nature.  It  may  be  convenient  to  draw  the  reader's  atten- 
tion to  the  enactments  at  2  R  S.  88  to  91,  with  respect  to  the 
reference  of  claims  against  the  estate  of  a  deceased  person,  dis- 
puted by  the  executors ;  although  the  consideration  of  refer- 
ences of  this  last  description,  in  no  respect  falls  within  the  plan 
of  the  present  work. 

The  powers  of  a  referee  of  an  issue  of  fact  being  substantially 
the  same  as  those  of  a  jury,  on  the  trial  of  a  similar  issue,  the 
general  rules  of  law  as  to  the  conduct  and  duties  of  jurors, 
under  such  circumstances,  are  equally  applicable  to  them.  Thus, 
in  Yale  v.  Gcoiaits,  4  How.  253,  a  referee's  report  was  set  aside 
for  irregularity,  in  consequence  of  his  having  examined  some 
machinery  there  in  question,  in  company  with  two  of  the  plain- 
tiff's witnesses,  and  of  his  having  received  explanations  from 
45 


706  TRIAL  BY  REFEREES. 

such  witnesses,  without  the  knowledge  or  consent  of  the  defend- 
ants ;  and  this,  although  there  seemed  no  reason  to  doubt  his 
perfect  good  faith  in  the  matter,  and  his  perfect  unconsciousness 
of  any  impropriety  or  irregularity  in  that  line  of  conduct. 

In  Dorlon  v.  Leivis,  9  How.  1,  the  same  principles  are  fully 
maintained,  and  it  is  held  that,  if  it  appears  that  the  report  of 
a  referee  upon  questions  of  fact  has  been,  even  in  the  slightest 
degree,  affected  by  any  influence  exercised  by  the  successful 
party,  it  will  be  set  aside  for  irregularity.  A  referee,  when  the 
cause  is  intrusted  to  him,  should  not  only  avoid  all  improper 
influences,  but  even  the  appearance  of  evil,  and,  whether  satis- 
fied with  his  decision  or  not,  no  one  should  be  left  to  question 
its  entire  fairness. 

The  office  of  the  referees  being  in  its  nature  judicial,  they 
cannot  testify,  under  any  circumstances,  in  the  course  of  the 
proceedings  pending  before  them.  Morss  v.  Morss,  11  Barb. 
510,  1  0.  E.  (N.  S.)  374,  10  L.  0.  151. 

Any  defect  in  the  original  appointment  of  a  referee,  will  be 
waived  by  the  parties  proceeding  before  him  without  objection  ; 
and,  having  done  so,  they  will  not  be  permitted  to  raise  such 
objection  afterwards.  Renouil  v.  Harris,  2  Sandf.  641  ;  1  C.  R. 
125.  The  same  doctrine  was  also  held  by  the  court  in  Garde 
v.  Sheldon,  3  Barb.  232,  save  only  as  regards  the  point  that  the 
court  had  no  jurisdiction  to  make  the  order  of  reference.  That 
objection  may  be  raised  at  any  time. 

A  reference  "of  this  cause,"  without  limitation,  embraces  all 
the  issues,  both  of  law  or  fact,  therein,  and  the  referees  will 
have  power  to  report  upon  the  whole  of  such  issues.  Renouil 
v.  /funis,  1  C.  R.  125,  2  Sandf.  641,  above  cited.  See  also 
Graves  v.  Blanchard,  4  How.  300,  3  C.  R.  25,  before  referred  to. 

A  rule  of  court,  by  consent,  referring  to  referees,  "to  hear 
and  determine  the  matters  in  controversy  on  legal  and  equita- 
ble principles,"  was,  however,  held,  in  Bluntv.  Whitney,  3  Sandf. 
4,  to  be,  not  a  reference,  but  an  arbitration;  and  a  motion  to 
set  aside  tin'  report  made,  was  accordingly  dismissed  for  want  of 
jurisdiction.  The  decision  of  questions  by  arbitration,  is  en- 
tirely and  exclusively  a  proceeding  under  the  old  practice,  and 
is  in  no  manii'i'  affected  by  the  Code,  or  any  of  the  decisions 
under  it. 

On  the  granting  of  a  new  trial,  on  a  referee's  report,  the  same 
referee  may  proceed  in  the  matter  without  any  fresh  authority 


TRIAL  BY   REFEREES.  707 

from  the  court.  The  effect  of  the  proceeding  is,  to  replace  the 
cause  in  the  position  in  which  it  was  before  the  first  trial,  the 
order  of  reference  remaining  in  full  force.  Shuart  v.  Taylor,  7 
How.  251. 

§  212.    Course  of  Hearing. 

Though,  in  all  substantial  respects,  similar  to  a  trial  by  the 
court,  the  trial  by  referees  is  usually  of  more  irregular  continu- 
ance, and  of  longer  duration.  When  once  commenced,  a  trial 
by  the  court  is  usually  carried  on  to  its  conclusion,  as  a  conse- 
cutive proceeding,  without  any  postponement  or  adjournment, 
save  such  as  are  absolutely  and  indispensably  necessary,  and 
then  only  "  de  die  in  diem."  The  trial  before  referees  is,  on  the 
contrary,  rarely  so  disposed  of.  It  is,  ordinarily,  adjourned  and 
resumed  from  time  to  time,  at  irregular  and  arbitrary  intervals, 
according  to  .the  convenience  of  the  parties  or  of  the  referees, 
and  is,  in  consequence,  frequently  spread  over  a  comparatively 
prolonged  period. 

The  provisions  of  the  Eevised  Statutes,  in  the  article  above 
cited,  remain,  for  the  most  part,  practically  unrepealed,  and  the 
mode  of  conducting  the  proceedings  before  referees  is,  in  all 
essential  respects,  the  same  as  under  the  old  practice.  The 
works  on  that  practice  may  therefore,  if  necessary,  be  referred 
to  for  points  of  detail,  according  to  the  plan  laid  down  at  the 
commencement  of  this  work.  A  sketch,  however,  of  those: 
proceedings  may  be  useful  at  this  juncture. 

Notification  to  Referees — Their  Duty  thereupon.'] — Of  course,, 
the  first  proceeding  to  be  taken  by  the  party  having  the  con- 
duct of  the  reference,  is  to  notify  the  referees  of  their  appoint- 
ment, for  which  purpose,  a  copy  of  the  order  should  be  served 
upon  each.  On  receiving  such  notification,  they  must  proceed 
with  diligence  to  hear  and  decide  the  matters  in  controversy, 
(see  sec.  42  of  the  article  of  the  Eevised  Statutes  above  cited,) 
and  they  have  power  to  make  use  of  the  process  of  the  court, 
in  order  to  enforce  the  attendance  of  the  witnesses  before  them, 
ss.  44  and  45. 

They  are  bound  to  appoint  a  time  and  place  for  the  hearing, 
and  should  do  so  in  writing,  though  it  has  been  held  that  a 
parol  appointment  is  sufficient.     See  Stephens  v.  Strong,  8  How.. 


708  TRIAL  BY  REFEREES. 

339.  They  have  full  powers  of  adjournment  of  that  hearing, 
from  time  to  time,  and,  on  the  application  of  either  party,  and 
for  good  cause  shown,  they  may  postpone  it  to  a  time,  not 
extending  beyond  the  next  term  of  the  court  in  which  the  suit 
is  pending;  sec.  43.  This  power  is  extended  by  the  Code,  as 
above  cited,  and  is  now  the  same  as  that  of  the  court,  under 
similar  circumstances. 

Any  one  referee  may  administer  an  oath,  but  all  must  meet 
together,  and  hear  all  the  proofs  and  allegations  of  the  parties, 
and  an  adjournment  cannot  be  granted,  except  by  the  full 
number;  any  two,  however,  may  make  a  report;  sec.  46.  The 
referees  may  be  compelled  by  order  to  proceed,  and  to  report 
on  the  matter  submitted  to  them,  and  the  court  may  require 
them  to  report  any  proceeding  before  them,  and  their  reasons 
for  allowing  or  disallowing  any  claim,  if  necessary;  sec.  47.  In 
references  consequent  upon  judgment,  in  an  action  for  an  account, 
they  may  examine  the  parties  upon  oath,  and  may  require  the 
production  of  books,  papers,  or  documents,  in  the  custody,  or 
under  the  control,  of  either,  and,  in  case  of  refusal,  report  the 
same  to  the  court,  which  will  thereupon  proceed  to  enforce 
such  production,  by  the  ordinary  process  of  attachment;  ss. 
55  to  59. 

Production  of  Boohs,  &c] — In  other  cases,  they  have  no  power 
to  order  the  production  of  books  and  papers,  where  there  is  no 
provision  to  that  effect  in  the  order  of  reference.  The  power 
to  order  such  production  is  limited  to  the  court,  or  to  a  justice 
thereof.  The  certificate  of  a  referee  that  the  production  of  books 
and  papers  is  necessary,  will,  however,  be  regarded  as  presump- 
tively sufficient  to  warrant  an  order  for  their  production,  and 
the  burden  of  showing  the  contrary  will,  in  such  case,  lie  on 
the  adverse  party.  Frazer  v.  Phelps,  3  Sandf.  741,  1  0.  R. 
j(N,  S.)  'ill.  Care  should,  therefore,  be  taken,  to  have  a  direc- 
tion to  the  foregoing  effect  inserted  in  the  original  order,  in  all 
oases  where  such  production  is  likely  to  be  required. 

The  court  will  grant  to  the  referees  a  special  power  of  this 
nature,  as  of  course,  in  all  eases  in  which  a  reference  to  the 
master  would  have  been  proper,  under  the  old  chancery  prac- 
tice. Frcuer  v.  Phelps^  4  Sandf.  682.  They  will  then  be  com- 
petent  to  make  sueli  an  order  of  their  own  authority,  and  the 
iiuestion  as  to  the  propriety  of  the  order  so  made,  will  then 


TRIAL  BY  REFEREES.  709 

come  before  the  court,  on  the  motion  to  show  cause  why  an 
attachment  should  not  issue,  in  the  event  of  its  being  disobeyed 
by  the  parties. 

The  above  course  of  proceeding  is  proper,  when,  as  before 
stated,  the  necessity  of  such  production  is  foreseen,  when  the 
reference  is  originally  granted.  If  that  necessity  arise  subse- 
quently, the  obtaining  a  certificate,  as  above,  and  an  application 
to  the  court,  grounded  thereon,  will  be  requisite.  In  case  of  a 
refusal  to  produce,  a  special  application  to  the  court  appears 
then  to  be  the  only  course. 

Keferees  have  no  power,  of  their  own  authority,  to  issue  pro- 
cess of  contempt;  nor  can  they  make  any  order  of  that  nature, 
such  as  to  order  the  complaint  of  a  plaintiff  to  be  stricken  out, 
on  his  fraudulent  refusal  to  produce  papers  material  to  the 
defendant's  case,  on  a  subpoena  duces  tecum.  Bonesteel  v.  Lynde, 
8  How.  226,  affirmed,  8  How.  352. 

Notice  to  adverse  Party.]—  Due  notice  should  be  given  to  the 
opposite  part}r,  of  the  original  appointment  for  hearing  by  the 
referee,  and  of  each  adjournment,  when  such  party  is  not  pre- 
sent, at  the  time  when  that  adjournment  takes  place. 

No  time  is  positively  prescribed,  but  at  least  the  same  notice 
ought  to  be  given  of  the  first  hearing,  as  on  the  case  being  tried 
by  the  court.     See  Williams  v.  Sage,  1  C.  E.  (N.  S.)  358. 

This  seems,  indeed,  to  follow,  as  a  natural  consequence,  from 
the  provision  in  s.  272,  as  it  now  stands,  that  this  description  of 
trial  is  to  be  conducted,  in  the  same  manner,  and  on  similar 
notice,  as  a  trial  by  the  court.  This  view  is  taken,  and  the  right 
of  either  party  to  bring  on  the  case  on  such  notice  is  recognized, 
in  Thompson  v.  Krider,  8  How.  248.  Once  noticed,  the  pro- 
ceeding assumes  the  form  of  a  pending  trial,  and  no  fee  in  the 
nature  of  a  term  fee  can  be  claimed,  although  a  renewed  notice 
may  be  given,  after  an  adjournment  has  taken  place.  See 
Anon.,  1  Duer,  596;  8  How.  82,  overruling  Benton  v.  Bugnatt, 
1  C.  R  (N.  S.)  229. 

Course  on  Trial — General  Observations.'] — On  the  reference 
coming  on  in  due  course,  the  form  of  proceeding  is  the  same, 
"mutatis  mutandis"  as  on  an  ordinary  trial;  the  case  is  regu- 
larly opened,  proved,  and  summed  up,  at  the  meeting  or  meet- 
ings, in  proper  form,  and  in  a  consecutive  manner.     All  inter- 


710  TRIAL  BY   REFEREES. 

locutory  points  should  be  decided  at  the  time,  and  exceptions 
to  such  decisions  may  be  taken,  and  should  be  noted  precisely 
as  in  the  case  of  trial  by  the  court.  See  Deming  v.  Post,  1  C. 
R  121. 

The  referees,  in  fact,  stand  in  the  place  of  the  single  judge, 
for  all  purposes ;  and  all  that  must,  or  may  be  done  before  or 
by  such  judge,  during  the  hearing,  ought,  in  regularity,  to  be 
also  done  before  or  by  them.  Under  the  Code  of  1849,  it  was 
held  that  a  referee,  in  the  proceedings  before  him,  is  bound  by 
the  same  rules  as  to  the  admission  or  rejection  of  evidence,  as  a 
judge  upon  the  trial  of  a  cause.  He  cannot  admit  such  evi- 
dence de  bene  esse  at  the  time,  and  afterwards  state  that  he  has 
rejected  it  in  forming  his  decision.  "  His  discretion,  as  well  as 
his  authority  over  interlocutory  questions,  arising  in  the  course 
of  the  trial,  ceases  with  his  decision  of  them,  or  at  least  with 
the  trial  itself."  He  cannot  review  his  decision  on  them  after- 
wards, in  the  absence  of  the  parties.  Allen  v.  Way,  7  Barb.  585, 
3  C.  E.  243,  above  cited.  This  principle  is  fully  carried  out  by 
the  late  amendment.  See,  likewise,  Langley  v.  Hickman,  Green 
v.  Brown,  Schermerhom  v.  Develin,  and  Graves  v.  Blanchard,  be- 
fore cited. 

Divorce.'] — The  practice  in  references  for  a  divorce,  on  the 
ground  of  adultery,  is  laid  down  in  Arborgast  v.  Arborgast,  8  How. 
297.  All  facts  material  to  the  plaintiff's  right  to  a  decree  must 
be  fully  proved,  or  it  cannot  be  obtained ;  nor  can  the  testimony 
of  the  defendant  be  made  use  of  in  any  manner  for  such  pur- 
pose. 

Accounting.] — Where  an  account  is  directed  to  be  taken,  the 
former  rules  of  practice  of  the  court  of  chancery  are  still  in  full 
force.  Where,  therefore,  the  account  of  a  defendant  is  directed 
to  be  taken  in  the  "usual  manner,"  it  was  held  that  he  was 
bound  to  bring  in  before  the  referee  a  sworn  account,  including 
both  debits  and  credits,  in  the  manner  prescribed  in  the  107th 
Rule  of  the  late  court  of  chancery,  and  to  submit  to  such  ex- 
amination as  was  allowed  by  that  rule.  Wiggins  v.  Gaus,  4 
Sandf.  646.  The  rule  in  question  will  be  found,  in  extenso,  in 
a  note  at  the  end  of  the  case  in  question,  4  Sandf.  619. 

Where,  however,  the  pleadings  in  the  cause  presented  a 
preliminary  issue,  as  to  the  existence  or  non-existence  of  an 


TRIAL  BY   REFEREES.  711 

alleged  partnership,  a  special  report  by  the  referee,  with  a  view 
to  the  decision  of  that  question  in  the  first  instance,  before  pro- 
ceeding to  take  the  accounts,  which  would  be  consequent  on 
the  referee's  decision  in  the  affirmative  being  supported,  was 
held  to  be  undoubtedly  the  correct  practice.  Bantes  v.  Brady, 
8  How.  216. 

Nonsuit  or  Default.'] — By  Rule  22  of  the  Supreme  Court,  it  is 
specially  provided  that,  at  the  hearing,  the  plaintiff  may  submit 
to  a  nonsuit  or  dismissal  of  his  complaint,  or  be  nonsuited ;  or 
his  complaint  may  be  dismissed,  in  like  manner  as  upon  a  trial, 
at  any  time  before  the  cause  has  been  finally  submitted  to  the 
referees  for  their  decision ;  in  which  case,  the  referees  shall  re- 
port according  to  the  fact,  and  judgment  may  thereupon  be  per- 
fected by  the  defendant. 

In  the  rules,  as  they  stood  previous  to  the  last  amendment, 
the  provision  above  made  for  a  dismissal  had  been  omitted. 

That  the  defendant  might  obtain  an  adverse  nonsuit,  in  the 
event  of  the  plaintiff  failing  to  prove  his  case  at  the  hearing,  has 
always  been  clear.  See  Brockway  v.  Burnap,  12  Barb.  347  ;  8 
How.  188. 

The  course  to  be  pursued,  in  the  event  of  the  plaintiff's  ne- 
glect to  proceed  with  the  cause  before  the  referee,  has  given  rise 
to  more  discussion.  In  Holmes  v.  Shewn,  6  How.  217,  1  C.  R. 
(N.  S.)  380,  it  was  held  that,  under  these  circumstances,  the 
defendant  cannot  take  a  report  that  he  is  entitled  to  a  dismissal 
of  the  complaint,  and  enter  up  judgment  on  that  report,  as  of 
course.  This  view  proceeds  on  the  assumption  that  the  referee 
had  no  power,  under  the  Code  as  it  then  stood,  except  to  hear 
and  decide  the  issue ;  and  that  the  proper  course,  under  these 
circumstances,  would  be  a  motion  to  dismiss  the  complaint  for 
unreasonable  delay,  under  Rule  43  of  the  late  rules  of  the 
Supreme  Court. 

In  Williams  v.  Sage,  1  C.  R.  (N.  S.)  358,  a  precisely  contrary 
conclusion  is  come  to,  and  a  motion  to  dismiss  for  unreasonable 
delay  was  denied;  the  court  holding  that  either  party  may 
notice  an  action  for  trial  before  referees,  and  proceed  upon  that 
notice,  precisely  as  on  trial  by  the  court ;  and  that  the  referee, 
in  that  case,  should  have  proceeded  upon  the  defendant's  no- 
tice, and,  in  the  absence  of  evidence  on  the  part  of  the  plaintiff, 
reported  in  favor  of  the  former. 


712  TRIAL  BY  REFEREES. 

This  latter  conclusion  is  supported  by  the  subsequent  deci- 
sions of  Thompson  v.  Krider,  8  How.  248;  and  Stephens  v.  Strong, 
8  How.  339 ;  and  the  point  may,  therefore,  be  looked  upon  as 
settled  accordingly.  It  seems  clearly  deducible  indeed,  from  the 
language  of  Eule  22,  as  now  amended. 

It  is  further  supported  by  the  case  of  Salter  v.  Malcolm,  1 
Duer,  596,  which  holds  that,  under  these  circumstances,  the 
proper  judgment  to  be  entered  is  a  dismissal  of  the  complaint, 
and  not  an  absolute  judgment,  as  upon  verdict.  The  judgment 
ought  no  more  to  be  an  absolute  bar  in  such  a  case,  than  in  that 
of  a  nonsuit  upon  a  trial. 

Postponement  of  Trial,  Costs  of.] — By  sec.  314,  referees  are 
clothed  with  special  power  to  impose  the  payment  of  costs  not 
exceeding  ten  dollars,  as  the  condition  of  granting  any  post- 
ponement of  a  trial,  when  applied  for. 


§  213.  Report,  <fyc. 

The  trial,  or  hearing  before  the  referees  having  been  brought 
to  a  conclusion,  their  report  must  then  be  made.  Any  two,  as 
above  stated,  are  competent  to  make  that  report,  though  all 
must  be  present  at  the  actual  hearing.  Where  any  time  is  pre- 
scribed in  the  order  of  the  court,  within  which  the  report  must 
be  made,  that  direction  must  of  course  be  strictly  complied  with; 
as,  otherwise,  the  referees'  authority,  unless  subsequently  ex- 
tended, will  be  gone,  and  their  subsequent  proceedings  invalid. 
An  extension  of  this  nature,  if  requisite,  must  be  applied  for  by 
motion,  upon  notice,  in  the  usual  'manner,  the  facts  under  which 
that  extension  is- sought  being  shown,  and  the  absence  of  laches 
proved,  by  affidavit,  in  the  usual  manner;  or,  if  procurable, 
the  order  may  be  entered  on  consent.  The  objection,  too,  seems 
one  which  would  be  effectually  waived,  by  the  acquiescence  of 
the  adverse  party,  or  even  by  his  appearance  upon  any  pro- 
oeeding,  after  the  lapse  of  the  time  originally  prescribed,  with- 
out objection  made  at  the  time,  and  persevered  in. 

Feet  of  Referees.] — The  referees  themselves  draw  their  report, 
and  their  fees  must  be  paid  by  the  prevailing  party,  on  taking 
it  tip.     These  fees  are  fixed  by  sec.  313,  at  three  dollars  to  each 


TRIAL  BY   REFEREES.  713 

referee,  for  every  day  spent  in  the  business  of  the  reference ; 
but  the  parties  may  agree,  in  writing,  upon  any  other  rate  of 
compensation. 

It  has  been  held  in  Richards  v.  Allen,  11  L.  0.  159,  that  the 
referee  can  only  properly  deliver  the  report  to  the  successful 
party;  and  the  defendatft;  in  that  case,  having  taken  up  are- 
port  in  favor  of  the  plaintiff,  was  ordered  to  file  it  within  five 
days,  in  default  whereof,  the  referee  was  directed  to  deliver  a 
new  report  to  the  plaintiff,  on  payment  of  any  fees  remaining 
due. 

It  seems  from  Lamoreux  v.  Morris,  4  How.  245,  that  the 
attorney  in  a  proceeding,  is  not  personally  liable  to  a  referee 
for  the  payment  of  his  fees.  See  Howell  v.  Kinney,  1  How.  105. 
The  latter  may,  however,  practically  enforce  their  payment, 
by  refusing  to  deliver  over  their  report,  until  they  are  duly 
satisfied. 

Form  of  Report.'] — By  sec.  272,  as  it  now  stands,  the  form  of 
the  report  is  distinctly  prescribed.  .  "It  must  state  the  facts 
found,  and  the  conclusions  of  law,  separately."  The  unsuccess- 
ful party  has  a  right  to  have  these  placed  upon  the  record;  and 
to  have  all  material  issues  passed  upon.  See  Church  v.  Erben,  4 
Sandf.  691  ;    Van  Steenburgh  v.  Hoffman,  7  How.  492. 

This  last  amendment  is  in  accordance  with  the  general  prin- 
ciple of  the  rule  (No.  13)  previously  made  by  the  Superior 
Court,  by  which  it  is  provided  as  follows :  viz., 

"  The  party  who  moves  for  a  rehearing  or  review  of  a  cause 
or  matter  decided  by  a  referee  or  referees,  shall  procure  and 
furnish  to  the  court  a  special  report  of  the  referee  or  referees, 
setting  forth  distinctly  the  facts  found  on  the  reference,  and  his 
or  their  decision  upon  the  points  of  law  arising  in  the  cause." 
See  Church  v.  Erben,  4  Sandf.  691. 

It  is  true  that  the  proceeding  by  rehearing  is  no  longer  ap- 
plicable, except  to  interlocutory  or  consequential  reports,  but 
the  general  principle  involved,  is  the  same,  viz. :  that  the  un- 
successful party  is  entitled  to  have  the  whole  case  placed  upon 
the  record,  in  order  to  his  right  to  review  the  decision,  by 
appeal,  or  otherwise,  according  to  the  circumstances. 

The  Codes  of  1848  and  1849,  contained  no  directions  of  this 
nature,  but  the  decisions  under  those  Codes  had  previously  laid 
down  the  same  principles.     Thus,  it  was  held  that  a  referee,  in 


714  TRIAL  BY  REFEREES. 

his  report,  must  set  out  the  facts  proved  by  the  evidence  before 
him,  and  his  conclusion  of  law  upon  those  facts;  and  he  may 
also  report  the  evidence.  If  he  omit  to  do  this,  his  report  will 
be  irregular,  and,  with  the  proceedings  under  it,  will  be  set 
aside.  Dolce  v.  Peek,  1  C.  E.  54.  It  is  also  laid  down,  that  the 
report  is  "to  contain  the  facts  found,  and  the  conclusions  of  law 
thereon,  in  MucMethwaite  v.  Weiser,  1  0.  R.  61,  and  to  the  same 
effect,  in  Deming  v.  Post,  1  C.  R.  121.  Reports  of  the  mere 
sum  due,  without  finding  the  facts,  were  accordingly  set  aside 
in  the  first  and  last  of  those  cases.  Although,  where  necessary, 
the  referee  may  report  the  evidence  in  addition,  he  must,  in  all 
cases,  report  the  facts,  and  he  is  not  at  liberty  to  report  the 
former  alone,  without  the  latter.  Dorr  v.  Noxon,  5  How.  29.  In 
preparing  his  report,  the  referee  cannot  review  his  interlocutory 
decisions  during  the  progress  of  the  cause,  nor  can  he,  in 
forming  his  conclusion,  reject  evidence  which  he  has  admitted 
u  de  bene  esse"  during  the  progress  of  the  hearing.  See  Allen 
v.  Way,  7  Barb.  585,  3  C.  R.  243,  before  cited. 

In  Buntes  v.  Brady,  8  How.  216,  where  a  general  reference 
had  been  made,  involving  an  issue,  in  the  first  instance,  as  to 
the  existence  of  an  alleged  partnership,  a  special  report  by  the 
referee,  upon  that  specific  question,  with  a  view  to  its  decision 
in  the  first  instance,  without  proceeding  to  take  accounts  which 
would  be  consequent  on  the  referee's  conclusion  in  the  affir- 
mative, was  held  to  be  the  correct  practice. 

If  a  report,  generally  regular,  be  defective  in  not  reporting 
on  some  one  particular  issue,  it  seems  that  it  may  be  amended 
almost  as  of  course.  See  Renouil  v.  Harris,  2  Sandf.  641;  1 
C.  R.  125. 

A  motion,  upon  the  usual  notice,  is  the  proper  course  to  pur- 
sue, for  the  purpose  of  obtaining  corrections  of  this  nature, 
which  may  be  grounded  cither  on  the  previous  pleadings  and 
proceedings,  when  the  defect  is  apparent  upon  their  face,  or 
upon  affidavit,  where  that  defect  requires  to  be  extraneously 
shown. 

An  application  of  a  similar  nature  is  doubtless  admissible, 
where  the  adverse  party  complains  of  an  insufficient  or  erro- 
neous statement  of  tin;  facts,  by  a  referee,  in  his  report,  under 
the  pre  int  provisions  of  the  Code.  With  a  view  to  such  an 
application,  however,  the  precise  defect,  and  its  detrimental 
influence  on   the  ease  of  the  applicant,  and  also  the  real  facts 


TRIAL  BY  REFEREES.  715 

required  to  be  stated,  must  be  clearly  and  distinctly  proved, 
and  pointed  out,  as,  otherwise,  the  application  will  be  neces- 
sarily unavailing. 

Conclusiveness  of  Report^] — It  appears  from  the  case  of  Wat- 
kins  v.  Stevens,  4  Barb.  168,  that  the  report  of  referees,  like  the 
verdict  of  a  jury,  is,  as  a  general  rule,  conclusive  in  a  case  of 
conflict  of  evidence,  so  far  as  regards  the  questions  of  fact 
passed  upon,  unless  some  principle  of  law  has  been  violated. 
See  also  Green  v.  Brown,  8  Barb.  119,  and  Baker  v.  Martin,  3 
Barb.  634;  Spencer  v.  The  Utica  and  Schenectady  R.  R.  Company, 
5  Barb.  337;  Camp  v.  Pulver,  Ibid.  91;  Quackenbush  v.  Ehle; 
Ibid.  469 ;  Durkee  v.  Mott,  8  Barb.  423,  and  Hayes  v.  Symonds, 
9  Barb.  260 ;  Ludington  v.  Taft,  10  Barb.  447 ;  Kemeys  v.  Rich- 
ards, 11  Barb.  312;  Orchard  v.  Cross,  12  Barb.  294;  Lockwood 
v.  Thome,  12  Barb.  487 ;  Shuart  v.  Taylor,  7  How.  251 ;  Bobson 
v.  Tracey,  Morris  v.  ITusson,  McKnight  v.  Chauncey,  Court  of 
Appeals,  12th  April,  1853 ;  Bearss  v.  Copley,  Court  of  Appeals, 
18th  April,  1854  ;  Borlon  v.  Lewis,  9  How.  1 ;  Boubleday  v. 
Newton,  9  How.  71. 

Nor  will  such  a  report  be  set  aside  for  unimportant  mistakes. 
The  error  complained  of,  must  be  a  clear  and  decisive  error, 
by  which  the  party  objecting  to  it  has  been  injured.  Luding- 
ton v.  Taft,  above  cited.  A  report,  too,  may  be  upheld,  although 
some  testimony  may  have  been  improperly  admitted,  if,  reject- 
ing that  testimony,  enough  remains  to  sustain  it.  Kemeys  v. 
Richards,  also  above  referred  to. 

The  rule,  that  the  decision  of  a  referee  stands  on  the  same 
footing  as  the  verdict  of  a  jury,  is,  however,  subject  to  some 
qualification.  Thus,  in  Scranton  v.  Baxter,  4  Sandf.  5,  it  is 
held  that  this  rule  is  only  applicable,  when  the  grounds  of  the 
report  are  explicitly  stated  by  the  referee,  or,  from  the  nature 
of  the  controversy,  are  apparent  upon  the  face  of  the  report. 
When,  on  the  contrary,  the  cause  involves  distinct  and  alter- 
native questions  of  law  and  of  fact,  and  the  report  is  general, 
the  court  must  necessarily  act  on  the  free  exercise  of  its  own 
judgment,  both  as  to  the  law  and  the  evidence.  The  report  in 
that  case  was  accordingly  set  aside,  on  motion,  that  course  being 
admissible  at  the  time  the  decision  was  made. 

A  similar  conclusion  was  come  to  in  Vansteenburgh  v.  Hoff- 
man, 15  Barb.  28,  on  the  review  of  a  report,  by  appeal,  as  now 


716  TRIAL  BY  REFEREES. 

provided.  It  was  held,  that  a  review  of  this  description  was 
analogous  to  a  motion,  under  the  former  practice,  to  set  aside 
the  report  as  against  evidence.  The  court  will  not  disturb  the 
finding,  on  a  difference  of  opinion  on  the  weight  of  testimony; 
but,  if  there  is  an  absence  of  evidence,  or  so  great  a  prepon- 
derance against  the  finding  as  to  indicate  prejudice,  partiality, 
or  corruption,  the  court  will  interfere.  See,  also,  Green  v. 
Brown,  and  Qaaclcenbush  v.  Ehle,  above  cited. 

In  Burhaus  v.  Van  Zandt,  7  Barb.  91,  it  was  held  that,  in 
equity  cases,  the  rule  as  to  the  conclusiveness  of  a  referee's 
report  did  not  prevail,  and  that  such  a  report  was  like  the 
report  of  a  master,  or  the  decision  of  a  vice-chancellor,  upon 
any  matter  referred ;  where,  upon  exceptions  or  appeal,  all 
questions  decided,  whether  of  fact  or  of  law,  were  the  subjects 
of  review.  The  finding  of  the  referee  in  that  case  was,  how- 
ever,  maintained,  and  affirmed  by  the  Court  of  Appeals,  30th 
December,  1852. 

The  same  principles,  as  to  the  exercise  of  improper  influence, 
apply  to  the  report  of  referees,  as  to  the  verdict  of  a  jury. 
When,  therefore,  there  is  even  the  shadow  of  an  imputation  of 
this  kind,  and  even  though  bad  faith  be  not  actually  imputed, 
the  report  will  be  set  aside.  See  Dorlon  v.  Lewis,  9  How.  1 ; 
Yale  v.  Gwinits,  4  How.  253. 

Review  of.  Report'] — The  review  of  a  report  on  the  whole 
issue,  since  the  last  amendment,  can  only  be  had  on  appeal 
from  the  judgment,  entered  upon  it;  and  not  at  special  term, 
as  previously  allowable.  Simmons  v.  Johnson,  6  How.  489 ; 
Church  v.  Rhodes,  6  How.  281 ;  Watson  v.  Scriven,  7  How.  9. 
See,  however,  Goulard  v.  Castitton,  12  Barb.  126,  in  relation  to 
courts  of  limited  jurisdiction,  and  laying  down  that,  when  the 
report  is  sent  back  to  the  referees  for  revision,  and  they  go 
beyond  the  correction  of  the  errors  for  which  it  is  so  sent  back, 
and  reopen  the  case  a  toother  items,  they  are  bound  to  hear 
additional  testimony,  if  offered.  See  this  subject  hereafter 
more  fully  considered  under  the  heads  of  New  Trial  and 
Appi 

Entry  of  Judgment]  Under  the  Codes  of  1848  and  1849,  in 
which  no  express  provision  was  made  on  the  subject,  it  was 
doubted  whether  judgment  could  or  could  not  be  entered  upon 


TRIAL  BY  REFEREES.  717 

the  report  of  referees  upon  the  whole  issue,  without  any  fur- 
ther direction  by  the  court.  In  Clark  v.  Andrews,  1  C.  R.  4, 
and  Deming  v.  Post,  1  C.  R.  121,  it  was  held  that  it  was  neces- 
sary to  obtain  such  direction.  In  Renouil  v.  Harris,  2  Sandf. 
641,  1  C.  R.  125,  the  contrary  was  maintained ;  and  the  prac- 
tice was  settled  accordingly,  by  Rule  22,  which  provides  that, 
on  filing  such  a  report,  judgment  may  be  entered  as  a  matter 
of  course.  This  provision  is  further  carried  out  by  the  last 
amendment  of  section  272.  See  this  subject  hereafter  con- 
sidered under  the  head  of  Judgment.  Where,  however,  the 
report  is  in  anywise  of  a  partial  or  incomplete  nature,  the  entry 
of  judgment,  with  directions  for  a  consequential  reference,  will 
be  inadmissible;  and  the  report,  where  not  purely  interlocu- 
tory, must,  on  the  contrary,  be  confirmed  in  the  first  instance, 
and  application  then  made  upon  it,  as  in  the  case  of  those  men- 
tioned in  the  next  section.  See  Bantes  v.  Brady,  8  How.  216, 
above  cited. 

§  214.    Interlocutory  or  consequential  Reports — Con- 
firmation of. 

Where  the  report  is  of  a  purely  interlocutory  nature,  and 
its  object  merely  to  report  facts  for  the  information  of  the 
court,  before  the  hearing  of  the  cause,  or  with  a  view  to  some 
purely  interlocutory  proceeding,  a  formal  order  of  confirmation 
does  not  seem  to  be  necessary,  but  action  may  be  taken  on 
such  a  report,  by  motion,  on  its  mere  production  to  the  court. 
Where,  however,  that  report  is  of  such  a  nature,  as  that  excep- 
tions can  properly  be  taken  to  the  decisions  of  the  referee, 
pending  the  proceedings  before  him,  the  rule  is  otherwise,  and 
in  all  cases,  where  there  is  any  doubt  upon  the  subject,  the  pre- 
caution of  a  formal  confirmation  should  not  be  neglected. 

Reports  falling  under  this  latter  category,  including,  as  a 
general  rule,  all  reports  consequential  upon  the  actual  hearing, 
and  with  a  view  to  the  proper  pronouncing  of  judgment,  or 
subsequent  to  that  judgment,  must,  in  all  cases,  be  confirmed, 
before  any  further  action  can  be  taken  upon  them.  "  If  the 
reference  be  made  on  the  hearing,  or  on  further  directions,  then 
the  practice  is,  upon  filing  the  report,  to  enter  an  order  of 
course  to  confirm  it.  unless  cause  be  shown  in  eight  days  after 
service  of  notice  of  that  order.     But,  when  the  report  is  the 


718  TRIAL  BY  REFEREES. 

consequence  of  an  order  made  on  the  motion  or  petition,  the 
confirmation  can  only  be  had  by  special  motion,  or  on  peti- 
tion." Griffing  v.  Slate,  5  How.  205,  3  G.  R.  213.  An  order 
for  leave  to  prosecute  an  undertaking,  given  on  the  granting  of 
an  injunction  subsequently  dissolved,  was  accordingly  refused 
in  that  case,  on  the  ground  that  the  application  could  not  be 
made,  until  the  referee's  report  on  the  amount  of  damages  had 
first  been  confirmed  on  a  special  motion.  In  Swarthout  v. 
Curtis,  4  Com.  415,  5  How.  198,  3  C.  R.  215,  the  referee's  report 
of  the  amount  due,  under  a  decree  of  foreclosure,  was  con- 
firmed at  special  term,  by  default,  on  a  regular  notice  of  mo- 
tion, and  this  confirmation  was  held  to  be  good,  as  it  doubtless 
was.  On  the  principle  laid  down  in  Griffing  v.  Slate,  however, 
the  usual  order  of  course  would  have  been  sufficient.  This  order 
should  be  precisely  in  the  words  there  given,  and  is  in  all  re- 
spects the  same  as  that  under  the  former  practice.  See  form  in 
Appendix.  It  must,  of  course,  be  duly  served  upon  all  parties, 
and  that  forthwith,  or  the  proceeding  may  become  voidable. 
See  Bautes  v.  Brady,  above  cited,  as  to  the  necessity  of  con- 
firming a  partial  report,  though  made  under  a  reference  of  the 
whole  issue.  See,  also,  as  to  confirmation,  Belmont  v.  Smith, 
1  Duer,  675,  11  L.  O.  216. 

Review  of.~\ — As  the  interlocutory  or  supplementary  reports 
of  referees  require  confirmation,  before  any  action  can  be  taken 
upon  them;  so  also  are  they  reviewable  by  the  court,  in  all 
cases.  It  is,  as  will  be  seen,  provided  that  they  have  "the  effect 
of  a  special  verdict."  The  mode  of  obtaining  such  review,  as 
regards  the  description  of  reports  last  referred  to,  is  "by  special 
motion  on  notice,  in  the  ordinary  form,  on  the  face  of  which, 
the  objections  taken  should  in  all  cases  be  shown." 

In  the  Superior  Court,  special  provision  is  made,  by  Rule  13 
of  that  tribunal,  as  above  cited,  that  a  party,  desiring  a  re- 
view of  this  description,  must,  in  the  first  instance,  obtain  a 
•i;lI  report  from  the  referee,  setting  forth  the  facts  of  the 
and  his  decision  thereon.  In  BelmontY.  Smith,  1  Duer, 
676,  II  1j-  0.  216,  above  cited,  it  was  held  that,  on  a  motion  to 
set  aside  a  report  of  this  nature,  a  special  report  must  be 
obtained,  as  above  prescribed,  and  that  an  affidavit  of  the 
proceedings  before  the  referee  cannot  be  used. 

It   seems  more   than    questionable,   however,    whether   this 


NEW  TRIAL,  &o.  719 

practice  is  imperative,  in  the  other  tribunals,  and  whether  the 
adduction  of  affidavits,  is  not  clearly  admissible,  if  not  the 
proper  mode  of  bringing  forward  a  motion  of  this  description. 
On  the  other  hand,  the  obtaining  a  special  report  will,  in  many, 
if  not  most  instances,  be  a  highly  convenient  course,  as  tend- 
ing to  save  the  time,  both  of  the  court,  and  of  the  parties. 

On  applying  for  such  a  special  report,  the  attention  of  the 
referees  should,  of  course,  be  directed  to  the  precise  points  in 
controversy,  in  order  that  they  may  make  their  report  full  and 
explicit,  and  sufficient  for  the  due  information  of  the  court,  on 
those  particular  questions.  In  most  cases,  the  observance  of 
this  precaution  will  narrow  and  simplify  the  discussion  on  the 
hearing  of  the  application,  and  render  unnecessary  the  intro- 
duction of  any  extraneous  matter. 

When  exceptions  are  filed  to  an  interlocutory  report,  they 
must  be  disposed  of  on  the  motion  to  review,  and  not  by  way 
of  appeal,  as  from  a  judgment,  and  they  are  subject  to  the  ordi- 
nary rule,  that  no  objections  can  be  so  raised,  if  not  taken 
before  the  referee  at  the  actual  hearing.  Belmont  v.  Smith, 
above  cited. 

Course  on  Review,  if  Granted.'] — If  the  order  to  review  be 
granted,  and,  as  is  usual  in  such  cases,  the  matter  be  referred  back 
to  the  same  referee  to  review  his  report,  the  proceedings  before 
him,  in  relation  to  such  review,  will,  of  course,  be  conducted 
precisely  on  the  same  footing  as  those  on  the  original  reference, 
and  his  further  report  must  be  obtained  and  acted  upon  pre- 
cisely in  the  same  manner. 


CHAPTER   VII. 


MOTION  FOR  NEW  TRIAL— PROCEEDINGS  BETWEEN  TRIAL  AND 

JUDGMENT. 


§215.    Course  of  unsuccessful  party  in  relation  to  Review. 

General  Remarks.'] — If  dissatisfied  with  the  verdict  of  the 
jury,  or  the  decision  of  the  court  or  referees,  it  is  always  open 
to  the  losing  party  to  apply  for  a  review  of  that  decision.     If 


720  NEW  TRIAL,  <fco. 

such  review  be  sought  on  alleged  error  in  point  of  law,  an 
appeal  upon  exceptions  is  the  more  ordinary  form  of  obtaining 
it ;  if,  on  the  contrary,  the  decision  of  the  issue  of  fact  be  com- 
plained of,  the  making  of  a  case  is  the  usual-course.  Under 
the  amendment  of  1851,  the  former  practice  of  moving  for  a 
new  trial  upon  the  judge's  minutes,  abolished  by  the  previous 
measures,  is  restored.  These  different  forms  of  proceeding 
will,  accordingly,  be  considered,  seriatim,  in  inverse  order.  The 
review  of  a  referee's  report  on  the  whole  issue,  being  obtaina- 
ble on  a  case  made,  will  be  considered  in  connection  with  that 
branch  of  the  subject. 

Statutory  Provisions.'] — In  the  Codes  of  1818  and  1849,  the 
subject  of  new  trial  in  jury  cases  was  left  totally  unprovided 
for,  the  only  notice  of  that  subject  being  under  the  head  of 
trial  by  the  court.  This  omission  gave  rise  to  much  discussion, 
and  to  many  doubtful,  and,  in  some  cases,  conflicting  decisions, 
with  regard  to  the  power  and  mode  of  reviewing  an  erroneous 
verdict  on  a  question  of  fact.  The  omission  is,  however,  now 
attempted  to  be  remedied  by  the  amendments  in  sections  261 
and  265. 

In  the  measure  of  1851,  these  amendments  were  made  at 
considerable  length.  On  the  last  revision,  the  clauses  so  in- 
serted have  been  completely  remodelled,  and  now  stand  as 
follows : 

8  264.  Upon  receiving  a  verdict,  the  clerk  shall  make  an  entry  in  his 
minutes,  specifying  the  time  and  place  of  the  trial,  the  names  of  the 
jurors  and  witnesses,  the  verdict,  and  either  the  judgment  rendered 
thereon,  or  an  order  that  the  cause  he  reserved  for  argument  or  further 
consideration.  If  a  different  direction  be  not  given  by  the  court,  the 
clerk  must  enter  judgment  in  conformity  with  the  verdict.  If  an  ex- 
ception be  taken,  ii  may  be  reduced  to  writing  at  the  time,  or  entered  in 
the  judge's  minutes,  and  afterwards  settled  as  provided  by  Ihe  rules 
of  the  court,  and  then  stated  in  writing  in  a  case,  or  separately,  with  so 
mucli  of  the  evidence  as  may  be  material  to  the  questions  to  be  raised, 
but  need  ri'>i  be  s<  aled  or  signed,  nor  need  a  bill  of  exceptions  be  m  ide. 
]f  the  exoi  prion  be,  in  the  first  instance,  staled  in  a  oase,  and  it  be 
afterwards  necessary  to  separate  them,  the  separation  may  be  made 
under  the  direction  of  the  court,  or  h  jadge  thereof.  The  judge  who 
tries  the  cause,  may,  io  Ids  discretion,  entertain  a  motion  to  be  made  on 
1,h  minutes  to  Bet  a  ide  a  verdict,  and  grant  a  new  trial  upon  excep- 
tion ,  or  for  insufficient  evidence,  or  for  excessive  damages ;  but  such 


NEW  TRIAL.  <fco.  721 

motions  in  actions  hereafter  tried,  is  heard  upon  the  minutes,  can  only 
be  beard  at  the  same  term  or  circuit  at  which  thetiial  is  had.  When 
such  motion  is  heard  and  decided  upon  the  minutes  of  the  judge,  and  an 
appeal  is  taken  from  the  decision,  a  case  of  exceptions  must  be  settled 
in  the  usual  form,  upon  which  the  argument  of  the  appeal  must  be  had. 
§  265.  A  motion  for  a  new  trial,  on  a  case,  or  exceptions,  or  other- 
wise, and  application  for  judgment  on  a  special  verdict,  or  case  reserved 
for  argument  or  further  consideration,  must,  in  the  first  instance,  be 
heard  and  decided  at  the  circuit  or  special  teim,  except  that,  when  ex- 
ceptions are  taken,  the  judge  trying  the  cause  may,  at  the  trial,  direct 
them  to  be  heard  in  the  first  instance  at  the  general  term,  and  the 
judgment  in  the  mean  time  suspended  ;  and  in  that  case,  they  must  be 
there  heard  in  the  first  instance,  and  judgment  there  given.  And 
where,  upon  a  trial,  the  case  presents  only  questions  of  law,  the  judge 
may  direct  a  verdict  subject  to  the  opinion  of  the  court  at  a  general 
term  ;  and  in  that  case,  the  application  for  judgment  must  be  made  at 
the  general  term. 

A  small  portion  of  these  sections  refers  to  the  reservation  of 
cases  for  argument  or  further  consideration,  or  to  a  verdict 
taken  subject  to  the  opinion  of  the  court,  proceedings,  in  which, 
the  plaintiff  is  the  moving  party,  and  which  will  accordingly 
be  considered  in  the  next  chapter. 

It  will  be  observed  that,  by  the  last  amendment,  the  ancient 
nomenclature  and  distinctive  form  of  the  bill  of  exceptions  are 
abolished,  and  a  statement  in  writing,  differing  but  little  from  a 
case,  for  a  review  on  the  facts,  in  the  usual  form,  is  substituted 
in  its  stead. 


§  216.      Stay  of  Proceedings, 

Whatever  the  course  of  proceeding  adopted  by  him,  the  first 
measure  advisable  on  behalf  of  a  party  dissatisfied  with  the 
decision  pronounced,  will  be  to  obtain  a  general  stay  of  his 
adversary's  proceedings.  In  Ball  v.  %Tlie  Syracuse  and  Utica 
Plank  Company,  6  How.  198,  1  C.  E.  (N.  S.)  410,  it  was  even 
held,  that  a  new  trial  could  not  be  granted  at  all,  under  the 
Code  of  1849,  unless  the  case  were  reserved  for  argument,  or 
unless  such  an  order  were  obtained,  within  the  four  days,  after 
which,  under  that  measure,  the  order  would  otherwise  become 
final.  See  also  Rule  8  of  Superior  Court,  below  cited.  Though 
the  restriction  of  1849,  under  which  the  judgment  became  final 
46 


722  NEW  TRIAL,  ETC. 

after  the  above  period,  unless  the  contrary  was  provided  for,  no 
longer  exists;  the  application  should,  in  all  cases,  be  made  at 
once,  and,  if  possible,  to  the  judge  who  tried  the  cause,  either  at 
the  trial,  for  a  special  direction  to  that  effect,  (which  seems  to 
be  contemplated  by  the  last  amendment,)  or,  at  all  events,  as 
soon  after  as  possible.  In  this  case,  no  additional  evidence 
whatever  will  be  necessary.  The  motion  may,  on  the  contrary, 
be  made  ex  parte,  grounded  on  the  judge's  personal  knowledge 
of  the  facts,  which  have  been  so  recently  before  him.  Unless 
the  proceeding  be  palpably  frivolous  or  dilatory,  the  granting 
of  a  stay  of  this  nature  is  almost  as  of  course.  The  power  of 
the  judge  in  this  respect,  was  clearly  asserted,  in  the  case  of 
Livingston  Y.Miller,  1  C.  R.  117.  The  subject  has  been  already 
fully  considered  in  Book  IV.,  under  the  head  of  formal  pro- 
ceedings ;  see  that  chapter,  and  the  cases  there  cited. 

Where  the  trial  has  been  by  jury,  and  exceptions  have  been 
taken,  and  those  exceptions  are  directed  by  the  judge  to  be  first 
heard  at  the  General  Term,  under  the  special  power  given  for 
that  purpose  in  sec.  265,  such  direction,  of  itself,  effects  a  stay 
until  that  hearing  has  taken  place,  and  no  further  order  will  be 
necessary  under  these  peculiar  circumstances. 

Prior  to  the  recent  amendments,  the  stay  usually  applied  for 
was,  until  the  case  or  bill  of  exceptions  should  have  been  settled 
and  filed ;  and,  with  regard  to  the  latter  proceeding,  such  will 
still  be  the  proper  course,  as,  on  the  exceptions,  where  separately 
taken,  being  settled,  judgment  is  signed  by  the  adverse  party, 
and  the  application  then  assumes  the  shape  of  an  appeal. 
Where  the  motion  is  on  a  case,  the  stay  applied  for  should  be, 
not  merely  until  after  the  settlement  of  the  case,  but  also  until 
some  reasonable  time  after  the  hearing  and  final  decision  of  the 
motion  founded  thereon.  This  will  save  the  necessity  of  a 
second  application  for  the  latter  purpose.  Such  also  is  the  pro- 
per liii  in  of  Stay,  where  the  application  for  a  new  trial  is 
intended  to  be  made  at  once,  upon  the  judge's  minutes.  Forms 
of  the  order  to  be  applied  for  in  these  eases,  will  be  found  in 
the  appendix. 

The  advantage  ofapplyingto  the  judge,  who  tried  the  cause, 
is  obvious.  In  the  Superior  Court  it.  is  made  imperative,  by  No. 
S  of  Hie  Special  Rules;  and  it  is  also  prescribed,  that  such  stay 
must  be  obtained  and  served,  within  four  days  after  the  entry 
of  judgment  by  the  clerk,  or  before  the  insertion  of  the  costs 


NEW  TRIAL,  ETC.  723 

by  that  officer  in  the  judgment  roll.  In  the  other  tribunals, 
however,  it  is  competent  for  another  judge  to  entertain  such 
application.  In  this  case,  though  equally  made  ex  parte  and 
without  notice,  it  must  be  grounded  on  evidence,  sufficient  to 
satisfy  the  judge  applied  to,  as  to  what  actually  took  place  at 
the  trial,  and  likewise  that  the  application  is  one  proper  to  be 
granted. 

Where  the  review  of  the  decision  of  referees  is  applied  for, 
this  is,  of  course,  the  only  mode  of  proceeding,  as  the  referees, 
when  once  their  report  is  made,  are  "fundi  officio"  and  have  no 
further  power,  either  to  grant  a  stay  or  otherwise.  The  applica- 
tion, under  these  circumstances,  will  best  be  founded  on  the 
report  itself,  and  the  stay  asked  for  should  be  the  same  as  that 
upon  a  case  for  review  of  a  verdict,   "  mutatis  mutandis."     A 
judge,  out  of  court,  generally  speaking,  has  no  power  to  grant 
a  stay  of  proceedings  of  this  nature,  extending  beyond  the  usual 
term  of  twenty  days.     All  he  can  do  is  to  grant  an  order  to 
show  cause,  returnable  in  court.  The  application  must  be  made 
to  the  court  itself,  or  the  party  must  give  the  usual  security  on 
an  appeal,  as  provided  by  sec.  348.     Steam  Navigation  Company 
v.  Weed,  8  How.  49;  see  likewise  Otis  v.  Spencer,  8  How.  171. 
In  the  first  district,  on  the  contrary,  a  judge  at  chambers  is 
competent  to  entertain  the  application,  as  before  mentioned. 
Under  any  circumstances,  however,  the  application  for  such  a 
stay  must  be  made  upon  notice,  and  a  series  of  ex  parte  orders 
cannot  be  granted.  See  supra  under  head  of  formal  proceedings ; 
see  likewise,  Sales  v.  Woodin,  8  How.  349,  Mitchell  v.  Hall,  7  How. 
490,  Anon.,  5  Sandf.  656,  and  numerous  other  eases  there  cited. 
In  Cochran  v.  Webb,  4   Sandf.   653,  a   somewhat   analogous 
proceeding  was  taken  by  the  Superior  Court,  in  holding,  with 
reference  to  two  cross  actions  as  to  the  same  parcel  of  real  es- 
tate, that,  in  the  event  of  the  plaintiff  in  the  first  action  succeed- 
ing on  his  alleged  legal  title,  further  proceedings  on  his  part 
might  be  stayed,  until  the  equitable  issue  in  the  other  suit 
should  be  also  determined.  The  special  provisions,  now  inserted, 
allowing  the  pleading  of  an  equitable  set-off,  in  answer  to  a 
legal  claim,  have,  in  a  great  measure,  neutralized  the  direct 
effect  of  this  decision  ;  but  the  general  principle  will  doubtless 
hold  good,  with  reference  to  the  enforcement  of  judgment  upon 
an  issue  of  law,  when  issues  of  fact  joined  in  the  same  action 
remain  still  untried  and  triable,  should  this  state  of  circum- 
stances occur. 


724  NEW  TRIAL,  <fco. 

The  stay  in  question  should  be  applied  for  as  early  as  pos- 
sible in  all  cases,  with  a  view  to  preclude  the  plaintiff  from 
serving  notice  of  his  judgment,  and  thereby  limiting  the  time 
for  appealing  to  the  general  term.  See  also  Rule  8  of  the  Supe- 
rior Court  above  noticed.  Once  obtained,  such  stay  has  the 
effect  of  stopping  this,  as  well  as  all  other  proceedings,  thus  prac- 
tically enlarging  the  time  in  question.  See'  Bagley  v.  Smith,  2 
Sandf.  651.  An  order  to  stay  must  be  applied  for  as  such,  in 
terms,  as  the  mere  taking  of  exceptions,  or  making  a  case,  has 
no  effect  whatever  as  a  stay  of  interim  proceedings,  for  the  pur- 
pose of  entering  or  enforcing  the  judgment,  or  otherwise.  Oak- 
ley v.  Aspinwall,  1  Sandf.  694. 

When  obtained,  the  order  in  question  should  be  forthwith 
served  upon  the  opposite  party,  when,  and  not  till  when,  the 
stay  is  complete.  It  is,  of  course,  competent  for  the  latter,  to 
move  to  vacate  the  order,  if  unduly  obtained.  If  it  be  clearly 
shown,  either  that  the  stay  has  been  obtained  in  manifest  bad 
faith,  or  that  the  subject  matter  of  the  action  will  be  imperilled 
by  delay,  the  application  might  be  successful,  but,  unless  a  very 
strong  case  be  made  out,  it  would  probably  be  useless. 

The  rule  of  the  Superior  Court,  above  cited,  provides  for  this 
contingency  as  follows :  "  The  court,  by  order,  may  permit 
the  judgment  to  be  entered  and  collected,  without  prejudice  to 
a  motion  to  set  aside  a  verdict,  and  may  impose  such  terms  on 
each  party  in  respect  thereof,  as  to  the  court  may  seem  meet." 


§  217.  Motion  on  Judges'1   Minutes. 

The  next  subject  to  be  considered,  is  the  motion  for  a  new 
trial  upon  the  judges'  minutes,  a  proceeding  solely  and  exclu- 
sively applicable  to  cases  where  the  trial  has  been  by  jury,  and 
which  can  only  be  taken  at  the  same  term  or  circuit  at  which 
that  trial  lias  been  had.  The  proceeding  is  a  restoration  of  the 
old  practice  of  motions  for  a  new  trial  at  the  circuit,  and  ap- 
pears more  peculiarly  applicable  to  those  eases,  in  which  mani- 
fest error,  or  manifest  irregularity  has  taken  place.  If  the  ques- 
tion be  one  of  real  difficulty  or  doubt,  it  is  more  than  probable 
that  such  application  would  scarcely  be  granted,  but  that  a 
motion  on  a  case,  regularly  made,  will  be  held  to  be  the  proper 
course. 


NEW  TRIAL,  Ac.  725 

No  papers  are  necessary  beyond  those  used  on  the  trial,  and 
the  opposite  party  must  of  course  have  notice  of  the  applica- 
tion, as  he  will  be  entitled  to  be  heard  in  opposition.  The  form 
and  length  of  this  notice  are  not  prescribed.  An  order  to  show 
cause  would  seem  to  be  the  more  advisable  course,  where  an  ar- 
rangement cannot  be  made  with  the  opposite  counsel,  to  bring 
on  the  motion  by  consent.  The  provision  being  comparatively 
recent,  and  the  practice  of  moving  upon  a  case  become  general, 
if  not  universal,  no  decisions  upon  its  construction  have  as  yet 
been  reported,  but  it  is  possible  that  some  difficulty  may  be  ex- 
perienced, in  settling  the  exact  course  to  be  pursued  under  it. 
In  the  mean  time,  the  works  on  the  former  practice  should  be 
consulted,  and  the  old  decisions  may,  in  all  probability,  be  held 
to  govern  the  future  course  of  proceeding.  The  judges'  deci- 
sion, whatever  it  may  be,  is,  it  will  be  seen,  reviewable  by 
appeal. 

The  question  as  to  another  class  of  motions,  analogous  to  the 
present,  in  this  respect,  i.  e.,  that  they  do  not  require  the  prepa- 
ration of  a  formal  case,  will  be  considered  in  the  closing  section 
of  this  chapter.  The  class  alluded  to  is  that  of  motions  on  the 
ground  of  surprise,  or  newly-discovered  evidence. 


§  218.    Motion  upon  a  Case,  as  to  Facts. 

General  Characterii>tics.~\ — We  now  arrive  at  the  more  usual 
practice  of  reviewing  the  verdict  of  a  jury,  or  the  decision  of 
the  court,  or  referees,  on  a  question  of  fact,  on  a  case  made  and 
submitted  for  that  purpose,  a  practice  which  was  fast  settling 
down  into  a  regular  and  consistent  system,  although,  as  before 
stated,  the  point  was  left  unprovided  for  by  the  Codes  of  1848 
and  1849.  This  conclusion  was,  however,  only  arrived  at,  as 
the  result  of  numerous  and  occasionally  conflicting  decisions. 

To  enter  into  any  lengthened  citation  of  these  authorities 
would  be  superfluous.  They  established,  by  a  species  of  gra- 
duated progression,  lstly.  That  such  review  was  obtainable, 
and  2dly.  That  the  special  term  is  the  proper  forum  for  that 
purpose.  A  short  notice  of  them  may  not,  however,  "be  super- 
fluous. 

In  the  following  cases  it  was  held,  that  the  verdict  of  a  jury» 
or  the  decision  of  a  single  judge  or  referee,  was  reviewable  by 


726  NEW  TRIAL,  Ac. 

the  general  term,  in  respect  of  errors  of  fact,  as  well  as  of  errors 
of  law:  Laimbeer  v.  Allen,  2  Sandf.  648,  2  C.  R.  15;  Pepper  v. 
Goulding,  4  How.  310,  3  C.  R.  29;  Weed  v.  Raney,  8  L.  0.  182; 
Nolton  v.  Moses,  3  Barb.  31;  Vallance  v.  King,  Id.  548;  Clark  v. 
Crandall,  Id.  612;  Krorn  v.  Schoonmaker,  Id.  647;  Wilson  v. 
Allen,  6  Barb.  542;  Carley  v.  Wilkins,  Id.  557;  and  J. /Zen  v. 
Way,  7  Barb.  585,  3  C.  R.  243. 

The  chief  cases  establishing  the  contrary  doctrine,  i.  e.,  that 
errors  of  fact  were  reviewable,  and,  as  such,  were  properly 
cognizable  by  the  special  term,  were  Haight  v.  Prince,  2  C.  R. 
95;  2  Sandf.  723  (Note);  Nones  v.  Hope  Mutual  Insurance 
Company,  5  How.  157,  2  C.  R.  101,  3  C.  R.  192;  Enos  v. 
Thomas,  5  How.  361,  1  C.  R.  (N.  S.)  67;  Burhaus  v.  Van  Zandl, 
-7  Barb.  91;  Leggett  v.  Matt,  4  How.  325,  2  Sandf.  720,  8  L.  0- 
236,  3  0.  R.  5;   Choice  v.  Passage,  4  How.  360;  Willis  v.  Welch, 

2  C.  R.  64;  Droz  v.  (M%,  (or  Lalcey,)  2  Sandf.  681,  2  C.  R.  83; 
Seely  v.  Chittenden,  4  How.  265;  Lush  v.  Lusk,  4  How.  418; 
Graham  v.  Milliman,  4  How.  435;  Hastings  v.  McKinley,  3  C. 
R.  10;  CWs*  v.  27*e  Few?  For^  Dry  Dock  Company,  3  C.  R.  118; 
(xn'a^  v.  La  Wall,  3  C.  R.  141,  5  How.  158;  Hatfield  v.  Ross; 
Crist  v.  Dry  Dock  Bank,  3  C.  R.  141 ;  In  re  Fort  Plain  and 
Cooper stown  Plank  Road  Company,  Ex  parte  Ransom,  3  C.  R.  148 ; 
Collins  v.  Albany  and  Schenectady  Railroad  Company,  5  How, 
435 ;   Benedict  v.  The  New  York  and  Harlem  Railroad  Company, 

3  C.  R.  15,  8  L.  O.  168;  to  which  may  be  added  the  recent  case 
of  Ball  v.  The  Syracuse  and  Utica  Railroad  Company,  6  How. 
198,  1  C.  R.  (N.  S.)  410.  The  latter  conclusion  may,  therefore, 
be  considered  as  having  been  established;  before  it  was  made, 
as  now,  the  subject  of  express  provision  by  the  legislature. 

A  conflict  of  doctrine  took  place  under  the  Code  of  1849,  as 
to  whether  a  referee's  report  on  the  whole  issue,  was  reviewable 
in  respect  of  errors  of  fact,  by  the  general,  or  by  the  special 
term.  The  former  view  was  maintained  in  laimbeer  v.  Mott, 
2  C.  R.  L5;  Pepper  v.  QovMing,  4  How.  310,  3  C.  R.  29;  and 
It'"'/  v.  /.'"/"'/•  8  L.  0.  182;  the  latter  in  Haight  V.  Prince,  2 
Sandf.  728,  2  0.  Et.  95;  Leggett  v.  Mutt,  2  Sandf.  720,  4  How. 
325,  8  L.  O.  236,  3  C.  R.  5;  Nones  v.  Hope  1/ '" I 'ual  Insurance 
Company,  ■>  I  low.  157,  2  C.  R.  101;  Crist  v.  The  Dry  Dock 
Company,  8  0.  Ii.  L18;  Origg  v.  La  Wall,  3  C.  R.  141,  5  How. 
U>8;  Hat/ield  v.  Bou;  Crist  v.  Dry  Dock  Hank,  3  C.  R.  141; 
Morgan  v.  Bruce,  1  C.  R.  (N.  S.)  36 1 ;  which  combined  series  of 


NEW  TRIAL,  <fec.  727 

decisions  seemed,  for  the  time,  to  establish  the  contrary  con- 
clusion, notwithstanding  the  unequivocal  provisions  to  the  for- 
mer effect,  as  contained  in  Rule  24,  as  it  stood  before  the  recent 
revision.  Under  the  present  amendments,  however,  a  referee's 
report  is  reviewable,  and  reviewable  only,  on  appeal  to  the 
general  term,  in  all  cases,  and  in  respect  of  all  objections ;  see 
Simmons  v.  Johnston,  6  How.  489 ;  Church  v.  Rhodes,  6  How. 
281 ;  Watson  v.  Scriven,  7  How.  9. 

The  only  exception  to  this  rule  is  with  reference  to  those 
courts  of  peculiar  jurisdiction,  such  as  the  City  Court  of  Brook- 
lyn, in  which  there  is  only  one  judge,  and  that  judge  empow- 
ered by  statute  to  grant  a  new  trial,  in  cases  within  his  cogni- 
zance. See  Goulard  v.  Castillon,  12  Barb.  126.  See,  hereafter, 
under  the  head  of  Appeals. 

§  219.   Motions  upon  Exceptions,  as  to  Law. 

General  Characteristics.'] — If  the  new  trial  be  sought  on  points 
of  law  only,  the  verdict  of  the  jury  on  the  facts  as  brought 
before  them  not  being  impeached,  the  course  then  to  be  pur- 
sued is  the  preparation  and  settlement  of  exceptions.  As 
regards  all  mere  formalities,  in  connection  with  the  preparation 
and  settlement  of  this  document,  the  practice  is  precisely  the 
same  as  that  prescribed  in  relation  to  the  settlement  of  a  case, 
and  the  two  will  therefore  be  considered  together,  in  the  next 
subsequent  section. 

In  its  original  framing,  however,  an  essential  difference 
exists,  which  will  now  be  adverted  to.  A  case  for  review  on 
the  facts,  in  general  contains  a  full  statement  of  all  that  actually 
transpired  upon  the  trial,  or,  at  least,  of  all  material  circum- 
stances, as  forming  grounds  for  the  verdict  of  the  jury,  or  the 
decision  of  the  court  or  referees.  Exceptions,  when  separately 
prepared,  and,  under  the  recent  amendments,  the  case  on  an 
appeal  from  the  decision  of  the  court  or  referees,  are,  on  the 
contrary,  documents  of  a  much  more  restricted  nature,  and  every 
statement  of  fact,  not  directly  bearing  upon  the  questions  to  be 
submitted  to  the  court  above,  and  absolutely  necessary  for  pre- 
senting those  questions  in  a  proper  shape,  should  be  rigorously 
excluded.  The  practice  on  the  preparation  of  a  special  verdict 
being,  in  this  respect,  identically  the  same,  the  cases  on  both 
will  be  cited  in  connection. 


728  NEW  TRIAL,  <fco. 

The  requisites,  on  the  preparation  of  a  bill  of  exceptions,  pre- 
vious to  the  last  amendment,  are  thus  stated  by  the  Court  of 
Appeals,  in  Price  v.  Powell,  3  Comst.  322.  A  bill  of  exceptions 
should  give  a  plain  and  concise  statement  of  the  facts,  out  of 
which  the  questions  of  law  arise,  and  the  evidence  should  not 
be  set  forth  in  detached  and  scattered  parcels.  If  loosely  pre- 
pared, every  doabt  about  facts  should  be  turned  against  the 
party  making  the  bill. 

The  application  of  these  principles  is  still  more  stringent  in 
the  case  of  a  special  verdict,  which  is  to  contain  facts  only,  and 
not  the  evidence  of  facts,  so  as  to  present  questions  of  law  only 
to  the  appellate  court.  Hill  v.  Covell,  1  Comst.  522 ;  Sisson  v. 
Barrett,  2  Comst.  406 ;  Langleij  v.  Warner,  3  Comst.  327. 

The  same  principles  held  good,  with  reference  to  a  case, 
seeking  to  review  a  referee's  decision,  in  respect  of  errors  of  law. 
Under  such  circumstances,  those  errors  must  be  made  fully 
apparent  on  the  face  of  the  case;  and,  if  such  review  be  sought 
in  respect  of  errors  of  this  nature  only,  the  case  should  be  settled 
accordingly,  stating  facts,  and  not  the  mere  evidence  of  facts,  so 
as  to  present  nothing  but  questions  of  law  to  the  appellate 
court.     Sturgis  v.  Merry,  3  How.  418,  2  Comst.  189. 

In  Livingston  v.  Radch'ff,  2  Comst.  189,  3  How.  417,  the  rule 
is  similarly  laid  down,  as  follows:  "As  to  questions  decided  by 
the  referee,  in  receiving  or  rejecting  evidence,  and  the  like,  the 
case  is  in  the  nature  of  a  bill  of  exceptions,  and,  as  to  the  merits, 
it  is  in  the  nature  of  a  special  verdict,  which  must  find  facts, 
and  not  the  mere  evidence  of  facts."  Similar  doctrines  are  laid 
down  by  the  Court  of  Appeals,  in  EsLerlyv.  Cole,  3  Comst.  502 » 
and  Borst  v.  Hpelman,  4  Comst.  284. 

In  order  to  sustain  exceptions,  it  is  actually  necessary  that 
the  objections  on  which  a  review  is  sought,  should  have  been 
formally  raised,  upon  the  actual  trial,  when  by  jury,  or  in  due 
time  after  the  decision  of  the  court  or  referee  has  been  pro- 
nounced, where  the  trial  has  taken  place  in  that  form.  Sec  this 
subject  considered,  and  numerous  cases  cited,  in  chap.  I.  of  the 
present  book-,  Sec.  196. 

Nor  can  an  exception  be  sustained,  as  ground  for  a  new  trial, 
when  the  defect  thereby  objected  to  has  been  subsequently  sup- 
plied. See  the  same  chapter  and  section,  and  the  cases  of 
Westlake  v.  The  St.  Lawrence  County  Mutual  Insurance  Company^ 
Ik'i/i  v.  Canning,  and  Bronson  v.  Wiman,  there  cited. 


NEW  TRIAL,  &o.  729 

Where,  however,  exceptions  have  been  formally  taken  in 
due  time,  the  right  to  make  a  case  embodying  those  exceptions 
in  due  time  afterwards,  is  fully  saved,  and  no  formal  order  of 
the  court  is  necessary.  See  Huff  v.  Bennett,  2  Sandf.  703,  2  C. 
R.  139,  above  cited. 

"Where  exceptions  had  been  actually  taken  in  good  faith  at 
the  trial,  with  a  view  of  insisting  upon  them  at  bar,  and  in  the 
appellate  court,  if  necessary ;  but  the  formal  leave  to  turn  the 
case  into  a  bill  of  exceptions,  as  requisite  under  the  Code  of 
1849,  had  been  inadvertently  omitted,  leave  was  given  to  cure 
the  formal  defect  by  amendment.  Oakley  v.  Aspinwall,  1  Sandf, 
694.  The  granting  of  such  leave  is,  however,  a  matter  resting 
entirely  in  the  discretion  of  the  court. 

A  total  omission  to  make  out  a  bill  of  exceptions,  or  to  se- 
parate the  questions  of  law  from  the  questions  of  fact,  so  as  to 
present  the  former  in  a  separate  and  distinguishable  form,  will 
preclude  a  review  in  the  Court  of  Appeals  altogether.  See  this 
subject  further  considered,  and  numerous  decisions  on  the  sub- 
ject cited,  under  the  head  of  appeals  to  that  court.  On  the 
primary  appeal  to  the  general  term,  errors  of  fact  and  of  law 
may  be  reviewed  in  connection,  and  on  the  same  hearing,  but, 
as  regards  the  former,  they  cannot  be  carried  to  the  court  of 
last  resort.  The  record  must,  on  the  contrary,  be  purged  of  all 
that  does  not  bear  directly  upon  the  question  of  law  to  be  sub- 
mitted. 

When  Exceptions  will  not  lie.~\ — Before  entering  upon  the 
formal  proceedings  in  reference  to  the  settlement  of  a  case  or 
exceptions,  it  may  be  convenient  to  notice  some  few  of  the 
recent  decisions,  in  relation  to  the  question  as  to  when  specific 
exceptions,  if  taken,  will  be  unsustainable;  without  pretending, 
however,  to  enter  fully  into  the  subject,  which  would  involve  a 
more  extended  consideration  of  matters  of  law,  not  merely  as 
connected  with,  but  as  contradistinguished  from  matters  of  prac- 
tice, than  would  be  consistent  with  the  general  plan  of  the 
work.  The  subject  has  already  been  partially  touched  upon  in 
chapter  IV.  of  the  present  book,  sec.  205.  See  that  section 
and  the  cases  there  cited. 

Amongst  the  latest  decisions  will  be  found,  then,  the  follow- 
ing. 

In  Walrod  v.  Ball,  9  Barb.  271,  it  was  held  that  an  opinion 


730  NEW  TRIAL,  Ac. 

expressed  by  a  judge,  upon  an  hypothetical  case  put  by  counsel, 
cannot  be  made  the  foundation  of  an  exception. 

Nor  can  the  denial  of  a  motion,  for  leave  to  amend  upon  the 
trial,  Brown  v.  McCune,  5  Sandf.  224;  Phincle  v.  Vaughan,  12 
Barb.  215  ;  or  the  giving  of  permission  to  the  jury  to  take  with 
them,  when  retiring  to  deliberate,  a  deposition  which  has  been 
read  in  evidence.  Howland  v.  Willetts,  5  Sandf.  219,  affirmed 
by  Court  of  Appeals,  31st  December,  1853. 

Nor  will  an  exception  to  the  decision  of  the  judge,  overruling 
an  objection  to  a  question,  be  available,  unless  material  evi- 
dence was  given  in  answer  to  that  question,  and  which  would 
be  embraced  in  the  objection. 

An  objection  to  the  charge  of  the  judge,  on  the  ground  of 
his  having  gone  beyond  the  line  of  his  duty,  in  commenting  on 
the  facts,  is  not  the  subject  of  exception,  if  no  error  of  law  be 
involved.  Bulkeley  v.  Keteltas,  1  Sandf.  450.  See,  likewise, 
Lansing  v.  Russell,  13  Barb.  510 ;  The  People  v.  Cook,  Court  of 
Appeals,  12th  April,  1852.  In  the  last-mentioned  case,  the 
general  principle  is  also  laid  down,  that  a  bill  of  exceptions 
does  not  lie  to  a  decision,  when  the  matter  rests  in  the  discre- 
tion of  the  judge;  the  point  there  in  issue  being,  the  preven- 
tion of  counsel  from  addressing  the  jury,  there  being  no  dispute 
about  the  facts,  and  no  question  of  damages  to  be  passed  upon 
by  them. 

In  a  case  where  a  feigned  issue  has  been  directed,  questions  of 
law  arising  upon  the  trial,  cannot  be  raised,  by  way  ofexceptions, 
in  the  first  instance.  The  only  mode  of  review,  under  these 
circumstances,  is  by  motion  upon  a  case,  and  upon  the  same 
principles  as  a  review  on  the  facts.  Snell  v.  Loucks,  12  Barb. 
385;  Lansing  v.  Russell,  13  Barb.  510.  The  same  rule  holds 
good  in  relation  to  the  review  of  justices'  judgments.  Spencer 
v.  The  Sarah  iga  ami  Washington  Railroad  Company,  12  Barb. 
382.  In  both  of  these  cases,  the  judgment  will  not  be  reversed 
for  technical  defects,  nor  unless  there  is  a  clear  preponderance 
of  evidence  against  it, 

§  220.  Preparation  and  Settlement  of  Case  or  Exceptions. 

Preparation.'] — Tin:  modi'  of  preparation  of  a  case,  under  any 
<if  the  foregoing  circumstances,  is  prescribed,  in  extenso,  by 
Rules  15  to  ID,  inclusive,  of  the  Supreme  Court,  those  rules 


NEW  TRIAL,  Ac.  731 

applying  equally  to  the  preparation  of  exceptions,  or  special 
verdict,  with  the  distinctions  noticed. 

The  case,  or  other  proceeding  to  be  so  settled,  is,  in  the  first 
instance,  to  be  prepared  by  the  party  intending  to  make  the 
motion.  The  mode  of  its  preparation  is,  however,  in  several 
respects,  different,  when  the  review  is  sought  in  respect  of  ques 
tions  of  fact,  or  of  mixed  questions  of  law  and  fact,  on  a  trial 
by  jury  on  the  one  hand  ;  or,  on  the  other,  when  that  review  is 
sought  exclusively  on  exceptions,  or  arises  in  respect  of  the 
decision  of  the  court  or  referees,  on  a  trial  without  a  jury. 

Where  the  cause  has  been  tried  by  a  jury,  the  case,  or 
case  and  exceptions,  to  be  so  prepared,  must  contain  a  cor- 
rect and  literal  statement  of  all  that  took  place  on  the  trial, 
giving  the  evidence  in  full,  or,  at  least,  such  portions  of  it  as 
relate,  directly  or  indirectly,  to  the  questions  on  which  a  review 
is  sought,  stating  all  the  different  exceptions  taken  throughout 
that  trial,  as  and  when  they  arose,  and  comprising,  lastly,  the 
charge  of  the  judge  and  the  verdict  of  the  jury. 

In  the  preparation  of  a  bill  of  exceptions  it  may,  it  seems,  be 
improper  to  insert  the  whole  of  the  judge's  charge,  in  extenso, 
unless  the  objection  that,  in  that  charge,  the  judge  has  gone 
beyond  the  line  of  his  duty,  has  been  taken,  and  can  be  sus- 
tained.   Bulkeley  v.  Keteltas,  4  Sandf.  450. 

Where,  on  the  other  hand,  the  review  is  sought  in  respect  of 
the  decision  of  the  court,  on  a  trial  without  a  jury,  the  case  or 
exceptions  must  be  drawn  in  a  more  concise  form,  and  so  as  to 
present  only  the  exact  questions  of  fact  or  of  law,  the  ruling  on 
which  is  sought  to  be  impeached.  To  this  extent,  the  parties 
may  state  the  evidence  in  point,  exactly  as  it  was  given ;  all 
beyond  this  will  be  superfluous,  and  may  be  stricken  out. 
Provision  to  this  effect  is  indeed  made  by  sec.  268,  as  now 
amended,  which  prescribes  that  the  judge,  in  settling  the  case, 
must  briefly  specify  the  facts  found  by  him,  and  his  conclusions 
of  law. 

When  the  case  has  been  tried  by  referees,  the  preparation  of 
the  case  should  be  on  principles  analogous  to  those  last  stated. 
The  trial,  and  the  review  of  that  trial,  is,  in  fact,  to  be  conducted 
in  the  same  manner  as  a  trial  by  the  court,  under  sec.  272. 
The  evidence  may  often,  with  propriety,  be  stated  a  little  more 
fully,  where  the  decision  is  impeached  on  points  of  fact ;  but  the 
referees  will  be  equally  bound  to  state  the  facts  found  by  them, 


732  NEW  TRIAL,  Ac. 

and  their  conclusions  of  law.  This  practice  is  analogous  to 
that  previously  prescribed  by  Eule  13  of  the  Superior  Court, 
which  provided  that  a  party,  seeking  a  review  of  this  nature, 
must  procure-  and  furnish  to  the  court  a  special  report  of  the 
referee  or  referees,  setting  forth  distinctly  the  facts  found  on 
the  reference,  and  his  or  their  decision  upon  the  points  of  law 
arising  in  the  cause. 

Service  of  Case  or  Exceptions.'] — When  prepared,  a  copy  of  the 
case  or  exceptions,  of  whatever  nature,  must  be  made  and  served 
upon  the  opposite  party,  the  lines  of  the  original  and  of  the 
copy,  being  so  numbered  as  that  each  shall  correspond.  All  this 
must  be  done,  and  the  copy  served,  within  ten  days  after  the 
trial,  or  notice  of  the  judgment,  as  the  case  may  be,  unless  such 
time  be  extended  by  order. 

Amendments  by  opposite  Parly. ~] — On  receiving  the  copy  thus 
served,  the  adverse  party  has  ten  days  within  which  to  peruse 
and  consider  it,  and  to  prepare  amendments  thereto.  These 
amendments  must  refer  distinctly  to  the  portions  which  are 
proposed  to  be  altered,  by  express  reference  to  the  marginal 
numbers,  and  a  copy  of  them  must  be  served  upon  the  attorney 
of  the  moving  party,  within  such  period. 

Notice  of  Settlement,  by  moving  Party.'] — On  receiving  the 
amendments,  the  latter,  if  he  disagree  thereto,  may,  within  four 
days  afterwards,  serve  his  opponent  with  notice  to  appear  before 
the  justice  who  tried  the  cause,  or  before  the  referee  or  referees, 
when  the  trial  has  taken  place  in  that  form,  and  have  the  case 
and  amendments  settled.  This  notice  must  not  be  for  less 
than  four,  or  more  than  twenty  days  after  service,  and  tke 
exact  time  must  be  distinctly  specified  upon  its  face. 

Si-tilemerit  by  Judge,  or  Referees.] — Although  the  appointment 
must  be  so  made,  it  is,  in  practice,  rarely  attended  by  the  parties. 
Tin;  course  more  usually  pursued,  is  to  leave  the  case  and 
amendments  with  the  judge  or  referee,  who  settles  it  at  his 
leisure.  For  this  purpose,  before  leaving  the  papers  with  him, 
tlev  should  be  revised,  and  his  attention  distinctly  drawn  to 
the  different  amendments,  by  notes  in  the  margin,  showing,  in 
particular,  which  of  those  amendments  are  disputed,  and,  if  so, 
on  what,  grounds.  In  ordinary  cases,  this  mode  of  proceeding 
will  answer  all  purposes;  but,  if  the  amendments  be  of  such  a 


NEW  TRIAL,  <fco.  733 

nature  as  to  render  an  actual  argument  upon  them  advisable,  or 
if  the  judge's  or  referee's  decision  thereon  be  unsatisfactory  to 
either  party,  it  is  competent  for  them  to  discuss  the  matter  per- 
sonally before  him,  and  to  obtain  his  deliberate  settlement  upon 
argument  regularly  had.  In  this  case,  the  appointment  origin- 
ally made  for  settlement  may  either  be  actually  attended,  or  a 
fresh  meeting  may  be  arranged  for  that  purpose. 

Where  the  judge,  before  whom  the  cause  was  tried,  had  died 
after  the  preparation,  but  before  the  settlement  of  a  bill  of  ex- 
ceptions, the  court  allowed  the  moving  party  to  make  a  fresh 
case,  embodying  those  exceptions.  The  proceedings  on  that 
case  were  to  be  carried  on,  as  to  amendments,  notices,  &c.,  as 
on  an  original  case,  the  notice  for  settlement  to  be  before  any 
justice  of  the  court.  The  moving  party  was  directed  to  furnish 
that  justice  with  the  original  minutes  on  the  actual  trial,  or  with 
a  copy;  and  either  side  were  to  be  at  liberty  to  present  to  the 
judge  affidavits,  in  respect  to  any  thing  which  occurred  upon  the 
trial.    Morse  v.  Evans,  6  How.  445. 

It  is,  of  course,  competent  for  either  party,  if  dissatisfied  with 
the  judge's  settlement  of  the  case  or  exceptions,  to  move  the 
court  that  it  be  resettled,  on  affidavits  showing  what  took  place, 
and  the  errors  committed  on  the  settlement. 

Such  a  motion  will,  however,  be  rarely  advisable,  as  a  very 
strong  case  indeed  must  be  made  out,  before  the  court  will  in- 
terfere with  a  matter,  so  purely  in  the  discretion  of  the  judge, 
and  on  which  he  is,  of  necessity,  so  much  more  thoroughly  in- 
formed, than  can  be  the  case  with  respect  to  any  other  judicial 
officer. 

A  motion  for  this  purpose,  when  otherwise  admissible,  may 
be  made,  pending  an  appeal  to  the  higher  tribunal.  It  will  not 
be  necessary  first  to  remit  the  record  for  that  purpose.  Witbeck 
v.  Waine,  8  How.  433. 

Waiver  of  rights  by  delay.'] — By  Eule  16,  the  periods  above 
mentioned  are  made  positively  imperative,  unless  extended  by 
special  order.  The  right,  whether  to  make  a  case  on  the  one 
hand,  or  to  propose  amendments  on  the  other,  will,  accordingly, 
be  gone,  unless  such  proceedings  be  taken  in  due  time ;  and  if, 
in  like  manner,  the  notice  to  appear  before  the  justice  to  settle 
the  case  and  amendments,  be  not  served  within  the  four  days 
limited,  the  right  to  object  to  those  amendments  will  be  lost, 
and  they  will  be  made  as  of  course. 


734:  NEW  TRIAL,  <fcc. 

In  Doty  v.  Brown,  3  How.  375,  2  C.  R.  3,  it  was  considered 
that  the  time  for  these  purposes  could  not  be  extended,  other- 
wise than  by  special  motion.  In  Thompson  v.  Blanchard,  how- 
ever, 3  How.  399,  1  C.  R.  105,  it  was  held  that  such  time  might 
be  indefinitely  extended  by  the  judge  who  tried  the  cause  ;  and, 
in  Huff  v.  Bennett,  2  Sandf.  703,  2  C.  R.  139,  this  principle  was 
extended  to  an  order  made  by  any  judge.  Such  order  will  not, 
however,  operate  as  a  stay  in  other  respects,  if  for  a  longer 
period  than  the  twenty  days  prescribed  by  sees.  401  and  405. 

Although,  as  below  laid  down,  and  on  the  authority  of  the 
cases  there  cited,  leave  may  be  granted  to  complete  the  formal 
preliminaries  to  a  motion  for  a  new  trial,  after  the  actual  entry 
of  judgment :  still,  in  those  cases  in  which  the  application  itself 
has  been  delayed  until  after  that  period,  bj'  laches  on  the  part  of 
the  applicant,  the  right  may  be  lost  by  delay.  The  principle 
that  a  motion  for  a  new  trial,  on  other  grounds  than  those  of 
irregularity  or  newly-discovered  evidence,  cannot  be  made  after 
judgment  entered,  is  strictly  laid  down  in  Hastings  v.  McKinley, 
3  C.  R.  10 ;  and  the  same  conclusion  is  come  to,  in  Enos  v. 
Thomas,  5  How.  361,  1  C.  R.  (N.  S.)  67.  See,  likewise,  cases 
cited  under  section  221,  in  relation  to  the  neglect  of  providing 
for  leave  to  turn  a  case  into  a  bill  of  exceptions,  as  the  law 
stood  on  that  subject,  prior  to  the  last  amendment  of  the  Code. 

Final  disposition  of  case  or  exceptions  when  settled — Ulterior 
course  on  exceptions.'] — The  case  or  exceptions  having  been  thus 
settled,  the  amendments  made  by  the  judge  should  be  brought 
to  the  notice  of  the  opposite  party,  and  an  opportunity  given 
him  to  amend  his  copy.  This  having  been  done,  a  fair  copy 
thereof,  as  finally  settled,  must  be  made,  and  be  filed  in  the 
office  of  the  clerk  of  the  court,  within,  at  the  latest,  ten  days 
from  the  time  it  has  been  finally  settled  by  the  judge.  This  is 
made  imperative  by  Rule  17,  and  the  effect  of  any  negligence  in 
this  respi  d  will  be,  that  the  proceeding  "shall  be  deemed  aban- 
doned," as  thereby  provided.  Under  the  last  amendment,  it  is 
no  longer  necessary  that  exceptions  should  be  either  signed 
or  sealed  by  the  judge,  as  heretofore  required  by  2  H.  S.  422, 
75. 

Nbl  ice  of  the  filing  of  the  case  or  exceptions,  as  above,  should, 
of  course,  be  given  to  the  opposite  party.  If  exceptions  have 
been  taken  alone,  and  the  review  Bought  is  exclusively  on  the 
law,  any   stay  of  proceedings  by  which  such  party  may  have 


NEW  TRIAL,  <fec.  735 

been  restrained  from  proceeding  to  enter  up  his  judgment,  will 
thereupon  be  at  an  end,  and  he  will  be  entitled  to  proceed  to 
do  so  in  due  course.  The  decision  of  the  questions  raised  on 
the  exceptions  will  then  come  on  in  due  form,  in  the  shape  of 
an  appeal  to  the  general  term ;  as  to  which,  see  hereafter.  The 
party  excepting,  should,  accordingly,  address  himself  before- 
hand, to  the  question  of  the  security  which  it  will  be  necessary 
for  him  to  give,  upon  the  appeal  so  taken.  If  he  feels  he  can 
depend  upon  his  opponent's  courtesy,  to  give  him  reasonable 
time  to  perfect  that  security  after  the  actual  entry  of  judgment, 
no  further  order  will  be  required.  If,  on  the  contrary,  the  case 
be  conducted  in  a  hostile  spirit,  application  should  be  made  for 
a  further  stay,  suspending  the  issuing  of  execution  on  the  judg- 
ment, when  signed,  for  a  limited  period,  in  order  to  give  time 
for  the  due  perfection  of  the  appeal.  This  application,  as  in 
the  former  instance,  should,  in  all  cases,  be  made  to  the  judge 
who  tried  the  cause,  and  has  settled  the  bill  of  exceptions, 
though,  as  before  shown,  it  may  be  made  to  any  other,  in  case 
of  necessity,  the  facts  being  shown  by  affidavit,  which  other- 
wise is  not  requisite.  The  order  may  be  obtained  ex  parte,  and 
must,  of  course,  be  duly  served.  If  not  obtained  before  judg- 
ment is  actually  signed,  the  opposite  party  will  be  entitled  to 
issue  execution,  immediately  upon  the  entry  of  such  judgment, 
without  regard  to  the  losing  party's  intention  to  appeal ;  and  he 
may  do  so,  even  if  such  appeal  have  actually  been  taken,  unless 
the  necessary  security  have  been  given.  See  hereafter,  under 
the  head  of  Appeals. 

The  old  practice  as  to  a  demurrer  to  the  evidence,  appears  to 
be  entirely  abolished,  or,  to  speak  more  correctly,  superseded 
by  the  review  upon  exceptions,  in  the  manner  above  prescribed. 

The  question  as  to  the  separation  of  exceptions  from  a  case, 
after  a  hearing  on  the  facts,  or  of  amendments  consequent  on 
the  direction  of  the  higher  tribunal,  will  be  considered  in  a 
subsequent   section. 

In  Wilson  v.  Allen,  3  How.  369,  7  L.  O.  286,  2  C.  R  26,  it 
was  considered  that  a  case  ought  to  be  verified  under  No.  44  of 
the  late  Supreme  Court  Eules.  The  present  contain  no  pro- 
vision upon  the  subject.     It  is  therefore  clearly  unnecessary. 

Power  to  complete  case  after  Judgment,  in  certain  cases.'] — The 
above  observations  all  proceed  upon  the  assumption  that  a  stay 


736  NEW  TRIAL,  <fco. 

of  proceedings  is  obtained,  and  that  the  case,  on  which  a  new 
trial  is  sought,  is  made  and  brought  to  a  hearing  before  the 
entry  of  judgment,  according  to  the  more  usual  practice.  A 
neglect  on  this  point,  or  a  refusal  on  the  part  of  the  court  to 
grant  such  a  stay,  will  not,  however,  prejudice  the  appealing 
party.  It  has  been  repeatedly  held  that  a  case,  so  made,  may 
be  attached  to  the  judgment  roll,  after  the  entry  of  judgment 
See  Rmouil  v.  Harris,  2  Sandf.  641,  1  C.  K  125,  2  C.  E.  71; 
Lynde  v.  Cuwenhoven,  4  How.  327 ;  Schenectady  and  Saratoga 
Plank  Road  Company  v.  Thatcher,  6  How.  226,  1  C.  R.  (N.  S.) 
380 ;  Gilchrist  v.  Stevenson,  7  How.  273.  By  the  Code  of  1851, 
express  authority  was  given  for  that  purpose.  On  the  revision, 
of  1852,  sec.  265  was  greatly  abbreviated,  and  the  express  per* 
mission  was  omitted,  probably  because  it  was  thought  unneces- 
sary, the  point  having  been  previously  settled  under  the  measure 
of  1849,  which  contained  no  special  provision  for  that  purpose. 
It  will  be  necessary,  however,  to  make  a  special  application  to 
the  court,  by  motion,  in  the  usual  manner,  unless  such  permis- 
sion have  been  previously  given. 

§  221.     Hearing  of  Case  when  settled. 

On  the  case  or  exceptions  being  settled,  and  filed  as  above, 
the  matter  will  then  be  ready  for  argument,  before  the  special 
or  general  term,  according  to  circumstances. 

Hearing  by  Special  Term.'] — Where  the  review  sought  is  in 
respect  of  the  decision  of  a  jury,  on  questions  of  fact  only,  the 
case  must,  under  ordinary  circumstances,  be  set  down  on  the 
special  term  calendar,  and,  under  an}',  must  be  noticed  for 
trial  in  due  course.  It  takes  its  place  on  the  calendar,  and 
comes  on  in  the  same  manner  as  a  cause,  although  in  strictness 
a  motion.  No  papers  are  necessary  to  be  prepared  for  the 
hearing,  but  the  moving  party  must  see  that  the  original  case  is 
brought  into  court,  and  ready  for  the  judge's  use,  at  the  time 
the  matter  Ls  called  on.  The  argument  proceeds  as  usual;  and, 
if  a  new  trial  be  granted,  it  is,  of  course,  competent  to  the  ad- 
verse party  to  suggest,  and  to  the  court  to  impose  conditions, 
where  proper. 

By  General  Terfn}  where  optional]  -The  above  observations 
apply  to  a  ease,  seeking  a  review  of  the  decision  of  a  jury  on 


NEW  TRIAL,  &o.  737 

matters  of  fact  alone.  If,  however,  the  review  so  sought  be  of 
a  mixed  nature,  and  errors  of  law  are  also  complained  of,  it 
rests  in  the  option  of  the  moving  party  to  have  that  review 
made,  so  far  as  the  exceptions  are  concerned,  either  by  the 
general,  or  by  the  special  term,  in  the  first  instance.  Where 
the  exceptions  so  taken  are  of  importance,  the  former  may  be 
the  appropriate  course;  where,  on  the  contrary,  they  are  com- 
paratively unimportant,  and  the  review  on  the  facts  is  chiefly 
relied  on,  the  latter  mode  of  disposal  will  be  the  most  expe- 
dient ;  and,  by  sec.  265,  it  is  laid  down  as  the  rule,  and  the 
hearing  by  the  general  term  as  the  exception. 

The  power  to  apply  for  a  hearing  by  the  general  term  in  the 
first  instance,  is  thus  conferred  by  that  section.  After  laying 
down,  in  general  terms,  that  a  motion  for  a  new  trial,  on  a  case 
or  exceptions,  or  otherwise,  must,  in  the  first  instance,  be  heard 
and  decided  at  the  special  term,  it  thus  proceeds,  "except  that, 
when  exceptions  are  taken,  the  judge  trying  the  cause  may, 
at  the  trial,-  direct  them  to  be  heard,  in  the  first  instance,  at 
the  general  term,  and  the  judgment  in  the  mean  time  sus- 
pended; and,  in  that  case,  they  must  be  there  heard  in  the 
first  instance,  and  judgment  there  given." 

In  the  matter  of  Welch,  14  Barb.  396,  it  is  laid  down,  in 
terms,  that,  where  an  order  of  the  above  nature  has  been 
granted,  judgment  cannot  be  correctly  entered,  until  the  court, 
at  a  general  term,  has  decided  upon  the  bill  of  exceptions. 
This  seems  indeed  clear  beyond  a  doubt,  upon  the  express 
wording  of  the  section,  "suspending"  the  judgment  till  after 
that  hearing. 

Under  the  Code  of  1851,  the  powers  of  the  judge  to  direct  a 
hearing  by  the  general  term  in  the  first  instance,  extended  to  a 
case  generally,  and  as  regarded  all  the  questions  thereby  raised, 
whether  of  law  or  of  fact.  It  was  accordingly  held,  under  that 
code,  that  where,  from  the  nature  of  the  questions  involved,  or 
the  amount  in  issue,  the  decision  of  the  special  term  was  not 
likely  to  terminate  the  cause ;  a  hearing  by  the  general  term, 
in  the  first  instance,  would  be  granted  on  suitable  terms,  Mor- 
ris v.  Brower,  4  Sandf.  701 ;  and  in  Fellows  v.  Emperor,  13 
Barb.  92,  it  was  held  that,  on  such  a  review,  the  general  term 
had  power  to  decide  all  questions  presented,  whether  of  law  or 
of  fact.  By  the  last  amendment,  however,  the  power  to  decide, 
in  the  first  instance,  on  mere  questions  of  fact,  appears  to  be 
47 


738  NEW  TRIAL,  <feo. 

withdrawn  from  the  general  term  altogether,  and  the  remedy 
now  in  question  to  be  confined  to  exceptions  only,  as  such. 

The  review  by  the  general  term,  under  the  Code  of  1851, 
was  considered,  in  Fellows  v.  Sheridan,  6  How.  419,  to  be  in 
the  nature  of  a  motion,  and  not  of  an  appeal,  so  far  as  the 
question  of  costs  was  concerned. 

What  the  exact  effect  of  a  hearing  of  exceptions  in  this  form 
may  be,  under  the  section  as  it  now  stands,  as  regards  pro- 
ceedings ulterior  to  that  review,  seems  somewhat  doubtful.  It 
appears  clear,  from  the  terms  of  that  section,  that  the  hearing 
in  this  form  is  in  the  nature  of  a  motion,  and  not  of  an  appeal ; 
because  an  appeal  on  the  law  of  the  case,  can  only  properly 
take  place  on  the  judgment,  after  it  is  matured,  and  the  section 
expressly  provides  that  this  entry  is  to  be  suspended,  until  after 
the  hearing  of  the  exceptions.  What  then  is  the  effect  of  that 
hearing?  and  does  it  preclude  the  excepting  party,  assuming 
his  exceptions  to  be  overruled,  from  bringing  up  the  same 
questions  for  a  second  adjudication,  by  an  appeal  in  regular  form 
from  the  judgment,  when  entered?  If  this  be  the  case,  what, 
in  effect,  is  the  utility  of  the  first  hearing  ?  if  not,  in  what  shape 
is  the  decision  to  be  further  reviewed  ?  It  seems  clear  that  it 
cannot  be  taken  up  to  the  Court  of  Appeals,  in  the  shape  of  an 
appeal  from  the  judgment,  as  such  ;  because  such  an  appeal  will 
not  lie,  except  from  an  actual  decision  of  the  general  term  on 
that  judgment,  after  it  has  been  actually  rendered;  and,  unless 
a  second  hearing  take  place  on  the  points  submitted  by  the  ex- 
ceptions, no  such  decision  will  ever  have  been  made ;  for  the 
actual  ruling  to  be  reviewed  will,  in  fact,  have  been  made  prior 
to,  not  consequent  upon  the  judgment,  and,  as  such,  cannot  be 
reviewed  by  means  of  an  appeal  from  the  latter.  The  only 
mode  in  which  the  ultimate  review  seems  then  to  be  attainable 
will  be  by  appeal  from  the  original  order  of  the  general  term, 
iruling  the  exceptions,  a  most  inconvenient  form  of  re- 
vision; or  else,  by  means  "I'  a  second  hearing proformd,  on  the 
same  questions,  on  the  renewed  appeal  from  the  judgment,  as 
such,  in  the  usual  form,  and  upon  the  usual  security;  and,  in 
the  former  case,  what  security  is  to  be  given,  and  how,  and  on 
what  terms  i:-  execution  on  the  judgment  to  be  stayed,  pending 
the  review  on  the  preliminary  order?  Will,  too,  the  appeal 
from  the  order,  if  unsuccessful,  preclude  the  party  from  raising 
the  same  questions  a  second  lime,  oil  the  appeal  from  the  judg- 


NEW  TRIAL,  Ac.  739 

ment  as  such,  to  which  he  has  a  clear  statutory  right?  These 
considerations  appear  important,  and  seem  to  render  the  more 
usual  form,  of  a  hearing  by  the  single  judge,  in  the  first  in- 
stance, the  more  advisable  course  in  all  cases,  unless  under 
very  peculiar  circumstances. 

Hearing  by  General  Term,  where  imperative.'] — When  the  re- 
view sought  is  in  respect  of  the  decision  of  the  court  without  a 
jury,  or  of  referees,  the  proceeding  assumes,  at  the  outset,  the 
form  of  a  regular  appeal  to  the  general  term,  under  §  348,  and 
must  be  so  carried  on  :  the  case,  settled  as  above,  being  annexed 
to,  and  forming  part  of  the  judgment  record,  precisely  as  with 
reference  to  exceptions  taken  in  the  ordinary  form.  This  rule 
is  now  made  general  by  the  last  amendment,  in  relation  to  all 
the  superior  tribunals,  with  the  one  single  exception  of  those, 
in  which  there  is  in  fact  no  general  term,  and  where,  in  conse- 
quence, the  report  of  a  referee  must  be  reviewed  in  the  first  in- 
stance by  the  judge  of  that  court,  on  motion,  as  under  the  old 
practice,  before  it  can  be  carried  up  to  the  higher  tribunal  by 
appeal.     See  Goulard  v.  Castillon,  12  Barb.  126. 

Practice  of  Superior  Court.'] — By  the  rules  of  this  tribunal, 
the  practice,  on  motions  for  a  new  trial  on  a  case,  is  laid  down 
with  much  greater  detail  than  in  those  of  the  Supreme  Court. 
By  Eule  No.  9,  a  similar  practice  was  established  to  that  now 
prescribed,  with  reference  to  a  case  and  exceptions,  and  it  is 
provided  that,  if  the  review  be  sought  in  respect  of  alleged 
errors  of  law  as  well  as  of  fact,  the  former  must  be  presented 
upon  the  case  as  well  as  the  latter ;  which,  in  the  event  of  the 
application  for  a  new  trial  being  denied,  may  afterwards  be 
turned  into  a  bill  of  exceptions,  if  such  errors  have  been  other- 
wise duly  excepted  to ;  and  it  would  seem  that  this  will  be 
done  as  of  course,  in  accordance  with  the  principles  laid  down 
in  Huff  v.  Bennett,  before  cited. 

By  Eule  10,  it  is  provided,  in  analogy  with  the  present  gene- 
ral practice,  that  the  case,  so  settled  as  above,  must  be  heard  at 
special  term ;  but  a  restriction  is  imposed,  that  alleged  errors  of 
law  will  not  be  considered  on  that  hearing,  unless  by  the  ex- 
press direction  of  the  justice  before  whom  the  cause  was  tried. 
Where,  therefore,  it  is  considered  expedient  that  the  exceptions; 
on  the  law,  as  well  as  the  review  on  the  facts,  should  be  consi- 


740  NEW"  TRIAL,  &c 

dered  on  the  same  occasion,  this  direction  should  be  applied  for, 
at  the  time  the  case  is  presented  for  settlement.  In  cases  where 
the  questions  of  law  are,  as  it  were,  subsidiary  to  those  of  fact, 
this  course  will  be  highly  convenient ;  where,  on  the  contrary, 
those  questions  arise  in  the  shape  of  abstract  propositions,  it 
seems  inexpedient ;  as  the  decision  on  the  case,  if  a  new  trial  be 
granted,  may  possibly  render  their  consideration  unnecessary. 
Indeed,  under  the  latter  circumstances,  the  direction  of  the 
judge  may  probably  be  denied. 

By  Rule  11  of  the  same  court,  it  is  expressly  provided,  that 
the  order  at  special  term  granting  or  refusing  a  new  trial,  may 
be  appealed  from  in  the  same  manner;  and  that,  in  case  of  a 
refusal,  the  appeal  from  such  order  may  be  heard  at  the  same 
time  as  the  appeal  from  the  original  judgment,  in  respect  of 
errors  of  law,  if  such  errors  exist,  and  exceptions  have  been 
duly  taken ;  and,  by  Rule  12,  the  costs  under  these  circum- 
stances are  specially  provided  for  as  follows,  viz.,  that,  in  ordi- 
nary cases,  both  are  to  be  treated  as  one  appeal,  but  that  the 
court  may,  in  its  discretion,  give  the  usual  costs  of  a  motion 
upon  the  appeal  from  the  order,  if  thought  expedient,  in  addi- 
tion to  those  upon  that  from  the  judgment.  The  former  should, 
therefore,  be  asked  for,  on  all  occasions,  at  the  time  that  the 
decision  is  delivered ;  or,  if  the  parties  be  not  in  attendance, 
then  afterwards,  prior  to  the  settlement  of  the  costs. 

The  above  practice  must  accordingly  be  pursued  in  the  court 
in  question,  and  appears  to  be,  in  all  main  respects,  consonant 
with  the  recent  amendments  of  the  Code,  so  far  as  regards  the 
review  on  questions  of  fact  tried  by  a  jury.  In  these  cases  it 
may,  therefore,  be  a  convenient  precedent  to  follow,  as  respects 
proceedings  in  the  other  tribunals  also.  To  judgments  entered 
as  the  result  of  a  trial  by  the  court,  or  by  referees,  this  mode  of 
proceeding  is,  however,  no  longer  applicable,  under  the  recent 
amendments;  an  appeal  to  the  general  term  being  now  the 
proper  remedy  in  those  cases. 

§  222.   Separation  of  Exceptions,  when  requisite. 

This  proceeding  may  become  necessary,  where  exceptions 
have,  in  the  first  instance,  been  incorporated  in  a  case;  and,' a 
new  trial  having  been  denied  upon  the  (acts,  it  becomes  neces- 
sary to  extricate  those  exceptions  from  the  accompanying  state- 


NEW  TRIAL,  Ac.  741 

ments  of  fact,  so  as  to  present  them  in  a  pure  and  unincum- 
bered form,  to  the  superior  tribunal,  for  its  decision  on  the 
points  of  law  involved. 

This  form  of  proceeding  existed,  prior  to  the  distinct  statutory 
provision  now  made  for  that  purpose,  in  the  stipulation,  usually 
inserted,  for  leave  to  turn  a  case  for  a  new  trial,  when  made, 
into  a  bill  of  exceptions.  Under  the  Code  of  1849,  it  was  a 
matter  of  necessity  that  this  leave  should  be  expressly  stipu- 
lated for.  In  Smith  v.  Casivell,  4  How.  286,  the  court  refused 
to  allow  this  defect  to  be  remedied,  on  a  case  so  settled  without 
stipulation ;  and  the  same  view  was  acted  upon  in  Benedict  v. 
The  New  York  and  Harlem  Railroad  Company,  3  C.  E.  15 ;  8  L. 
O.  168.  In  the  latter  case,  however,  a  disposition  to  relax  the 
strictness  of  this  rule  was  manifested ;  and,  in  Hastings  v. 
McKinley,  3  C.  E.  10,  this  disposition  was  acted  upon,  though 
the  general  principle  on  which  the  stricter  cases  are  grounded, 
was  fully  admitted ;  and,  in  Hammond  v.  Hazard,  10  L.  O.  56, 
the  liberal  view  of  the  subject  was  still  further  extended.  Where 
exceptions,  too,  had  been  bond  fide  taken  on  the  trial,  but  the 
formal  leave  for  the  above  purpose  had  been  inadvertently 
omitted,  leave  was  given  to  cure  the  defect  by  amendment,  in 
Oakley  v.  Aspinwall,  1  Sandf.  694. 

Under  the  Code,  as  it  now  stands,  this  formal  leave  is  no 
longer  essential,  and  the  only  prerequisite  to  a  separation  of 
tfhis  description  is,  that  the  exceptions  should  have  been  taken 
in  due  time,  and  originally  stated  in  the  case.  When  so  stated, 
a  separate  review  on  those  exceptions  seems  claimable,  as  of 
right.  The  provision  for  that  purpose  is  made  by  sec.  264  as 
follows  :  "  If  the  exceptions  be  in  the  first  instance  stated  in  a 
case,  and  it  be  afterwards  necessary  to  separate  them,  the  sepa- 
ration may  be  made,  under  the  direction  of  the  court,  or  of  a 
judge  thereof." 

The  course,  then,  to  be  pursued,  under  these  circumstances,  is 
expressly  prescribed  by  Eules  18  and  19  as  last  amended,  which 
run  as  follows : 

Rule  18.  Where  a  party  shall  be  entitled  to  turn  a  case  into  a  spe- 
cial verdict  or  exceptions,  he  shall  have  thirty  days,  after  notice  of  the 
decision  thereon,  to  prepare  and  serve  such  special  verdict  or  exceptions. 
The  party  upon  whom  the  same  shall  be  served,  shall  have  twenty 
days  to  prepare  and  serve  amendments  ;  and,  in  case  such  amendments 
shall  not  be  agreed  to,  the  same  shall  be  settled  by  one  of  the  justices 


742  NEW  TRIAL,  <fco. 

of  the  court,  on  a  notice  to  be  given  within  ten  days  after  service  of 
such  amendments. 

Rule  19.  Incase  such  special  verdict  or  exceptions  shall  notbe  served 
within  the  said  thirty  days,  the  prevailing  party  shall  be  at  liberty  to 
proceed,  as  though  no  special  verdict  or  exceptions  had  been  taken,  and, 
in  case  no  amendment  shall  be  proposed  and  served  within  the  twenty 
days  allowed  for  that  purpose,  the  special  verdict  on  exceptions  shall  be 
deemed  assented  to,  as  prepared  and  served. 

It  is  obvious  from  these  provisions,  that,  under  the  above 
circumstances,  precisely  the  same  course  must  be  pursued,  as  on 
the  original  settlement  of  a  case,  with  no  difference,  except  as 
to  the  extension  of  some  of  the  prescribed  periods,  and  parti- 
cularly as  to  the  original  preparation  of  the  document.  These 
provisions  seem  also  to  effect  an  implied  stay  of  aU  proceedings, 
on  the  part  of  the  successful  party,  in  cases  where  this  course  is 
admissible,  for  the  thirty  days  originally  allowed  for  the  prepa- 
ration of  this  document.  Whether  that  stay  is  extendible,  as 
of  right,  during  the  further  periods  allowed  for  the  settlement 
of  those  exceptions,  when  prepared,  is  less  clear.  Such  seems  to 
be  the  intention  of  the  rules,  but  still,  until  the  question  is  set- 
tled by  express  decision,  the  obtaining  a  special  order  might  be 
more  prudent.  When  finally  settled,  or  assented  to  by  the  oppo- 
site party  expressly,  or  by  default  as  above,  the  exceptions 
should  be  forthwith  filed,  and,  at  the  very  latest,  within  the  ten 
days  provided  by  Rule  17,  or  they  will  be  deemed  abandoned. 
On  such  neglect,  or  upon  the  filing  of  the  exceptions,  the  oppo- 
site party  will  then  be  entitled  to  enter  up  judgment,  and  the 
appeal  from  that  judgment  will  proceed  in  due  course. 


§  223.  Resettlement   of  Exceptions,   by  express  order. 

In  certain  cases,  and  to  prevent  a  failure  of  justice,  the  appel- 
late tribunal  may  order  tin;  resettlement  of  exceptions,  origi- 
nally us  taken  in  .'in  imperfect  form. 

Thus  in  Livingston  v.  Miller,  7  How.  219,  where  it  appeared 
that  certain  questions  of  law  w<t<-  presented  by  exceptions  at 
the  trial,  and  were  passed  upon  by  the  General  Term,  although 
such  questions  did  not  sufficiently  appear  by  the  bill  of  excep- 
tions ;  tin-  Court  of  Appeals,  on  motion,  stayed  the  argument 
of  tin-  eause,  to  give  the  appellant  an  opportunity  to  apply  to 


NEW  TRIAL,  Ac.  743 

the  court  below  for  a  resettlement ;  and  it  was  further  held  that 
the  return,  after  such  amendment  of  the  exception,  would  be 
allowed  to  retain  its  original  date  of  filing. 

When,  however,  an  argument  has  taken  place,  and  judgment 
has  been  actually  pronounced  by  the  above  tribunal,  an  appli- 
cation for  the  above  purpose  will  come  too  late,  and  will  not  be 
granted.     Fitch  v.  Livingston,  7  How.  410. 

"When  a  resettlement  for  the  above  purpose  is  necessary,  or  is 
otherwise  advisable,  the  application  must  be  made  in  due  form, 
to  the  court  below.  The  order  for  that  purpose  may  be  made 
by  a  single  judge  at  special  term,  nor  is  it,  it  would  seem,  neces- 
sary to  apply  to  the  higher  court  to  remit  the  record  for  amend- 
ment. Wiibeck  v.  Waine,  8  How.  433.  Of  course,  a  copy  of 
the  exceptions,  when  resettled,  must  be  returned  in  the  usual 
manner  to  the  court  above,  and,  under  these  circumstances,  and 
where  that  amendment  takes  place  without  a  previous  sugges- 
tion of  the  appellate  tribunal,  it  may  be  more  prudent  to  apply 
to  the  latter,  for  formal  leave  to  substitute  the  amended  for  the 
original  documents,  on  the  return.  Where  the  suggestion  has 
proceeded  from  the  appellate  court  itself,  of  course  this  fur- 
ther precaution  will  be  unnecessary. 


§  224.    Result  of  decision  on  Case  or  Exceptions. 

In  all  the  courts,  an  appeal  may  be  taken  from  the  decision 
of  the  special  term  upon  a  case,  whatever  that  decision  may  be, 
in  the  ordinary  form  of  an  appeal  from  an  order.  Under  the 
Code  of  1851,  that  appeal  might  even  be  carried  up  to  the 
Court  of  Appeals  (see,  however,  Moore  v.  Westervelt,  1  C.  R.  (N.  S.) 
415);  by  the  last  amendment,  the  former  practice  is  restored,  and 
this  is  no  longer  feasible.  Provision  is,  however,  made  by  C. 
135  of  the  Laws  of  1854,  in  relation  to  appeals  taken  pending 
the  temporary  alteration  of  the  law  in  this  respect. 

If,  on  the  contrary,  a  new  trial  be  granted,  the  cause  is,  as  it 
were,  remitted  back  to  the  stage  of  the  original  joinder  of  issue, 
and  must  be  brought  on  a  second  time  for  trial,  in  regular  form 
and  in  due  course.  The  only  difference  between  the  second 
trial  and  the  first,  will  be  the  clearer  views  which  the  parties 
will  have,  as  to  what  will,  or  will  not  be  considered  as  admis- 
sible, either  in  point  of  evidence  or  of  argument.     If  the  de- 


744  NEW  TRIAL,  <fco. 

cision  on  the  motion  have  been  in  writing,  it  may  be  made  use 
of  for  this  purpose,  and  the  judge  may  probably  require  a  copy 
for  his  information,  which  should  be  in  readiness  accordingly. 
The  date  of  the  issue  on  the  second  trial  will  be  that  of  the 
original  joinder,  without  regard  to  the  subsequent  proceedings, 
and  the  cause  will  accordingly  take  a  higher  place  on  the 
calendar,  and  come  on  at  an  earlier  period. 

If  the  party  who  has  applied  for  and  obtained  a  new  trial, 
neglect  to  proceed,  it  is  competent  for  his  adversary  to  do  so, 
and  set  down  the  cause  in  due  order,  in  the  usual  manner.  Gale 
v.  Hoysradt,  3  How.  47. 

Where  a  new  trial  is  granted  on  the  defendant's  application, 
it  will,  however,  be  necessary  for  him  to  serve  a  copy  of  the 
order  on  the  plaintiff,  before  he  can  be  in  a  situation  to  move 
to  dismiss  the  latter's  complaint,  for  not  proceeding  to  trial. 
But,  where  the  new  trial  has  been  granted  on  the  plaintiff's 
application,  the  contrary  is  the  case.  Robb  v.  Jewell,  6  How. 
276. 

If  a  new  trial  be  granted  on  the  facts,  of  course  the  excep- 
tions taken  upon  the  original  hearing  are  no  longer  of  any 
practical  operation.  If,  however,  the  application  be  refused, 
a  further  review  may  be  obtained  on  those  exceptions,  which 
must  be  brought  on  in  due  course,  when  separated,  in  the 
manner  before  pointed  out. 

The  fact  that  the  cause  has  once  been  tried  by  a  jury,  does 
not  preclude  the  right  of  either  party  to  move  for  a  reference, 
in  a  case  involving  the  examination  of  a  long  account,  where  a 
new  trial  has  been  granted.  Brown  v.  Bradshaw,  8  How.  176 ; 
1  Duer,  635. 

An  amendment  as  to  parties  is  obtainable  also,  on  motion, 
where  proper;  but  it  will  not  be  granted,  it  seems,  on  the 
motion  for  a  new  trial,  but  only  on  a  special  application.  Travis 
v.  Tobias,  8  How.  333. 


§  225.      Law  as  to  granting  a  New   Trial. 

Although  tin:  practice  be  altered,  the  law  on  the  subject  of 
granting  or  refusing  a  new  trial,  remains  practically  unchanged. 
The  t<xt  books,  particularly  Oraham  on  New  Trials,  and  the 
works  on  the  old  practice  should  accordingly  be  referred  to  on 


NEW  TRIAL,  <fea  745 

the  subject.  To  enter  into  all  the  details  of  this  interesting,  but 
complicated  branch  of  discretionary  jurisdiction,  would  be  be- 
yond the  province  of  the  present  work.  A  reference  to  a  few 
of  the  recently  decided  cases  may,  however,  be  useful. 

The  provisions  of  the  Revised  Statutes,  2  R.  S.  809,  under 
which  a  new  trial  can  be  demanded,  in  ejectment  cases,  as  a 
matter  of  right,  were  held  to  be  unrepealed  by  the  Code,  in 
Rogers  v.  Wing,  5  How.  50 ;  Cooke  v.  Passage,  4  How.  360  ;  Lang 
v.  Roplce,  1  Duer,  701,  10  L.  O.  70 ;  Bellinger  v.  Martindale,  8 
How.  113.  No  more  than  two  new  trials  can,  however,  be 
granted  as  of  right,  under  this  statute ;  one,  on  payment  of 
costs,  without  showing  any  cause  whatever,  and  one,  where  the 
court  is  satisfied  that  justice  will  be  promoted.  It  was  not  the 
intention  of  the  statute,  that  each  party  should  have  two  new 
trials,  although  one  should  succeed  at  one,  and  the  other  at  the 
next.  Bellinger  v.  Martindale.  If  too,  instead  of  a  regular  trial 
being  had,  the  controversy  between  the  parties  be  submitted, 
under  sec.  372,  the  statutory  right  to  a  new  trial  will  be  gone. 
Lang  v.  Ropke,  above  stated.  In  relation  to  new  trials  in  eject- 
ment, not  specially  olaimed  under  the  statute,  see  Briggs  v. 
Wills,  12  Barb.  567 ;  Lane  v.  Gould,  10  Barb.  254. 

The  old  principle  stands  good  that,  as  a  general  rule,  the 
verdict  of  a  jury,  or  the  decision  of  a  single  judge,  or  of  re- 
ferees, on  questions  of  fact  decided  by  them,  are  absolutely  con- 
clusive ;  if  given  or  pronounced  on  sufficient,  though  conflicting 
evidence,  consistently  with  that  evidence,  and  without  error  or 
miscarriage  in  point  of  law.  All  three  stand,  therefore,  prac- 
tically on  the  same  footing,  with  reference  to  the  principles  on 
which  an  application  for  a  new  trial  may  or  may  not  be  granted, 
on  alleged  error  in  fact. 

The  conclusiveness  of  the  verdict  of  a  jury,  under  these 
circumstances,  is  maintained,  amongst  other  cases,  in  Rathbonev. 
Stantoii,  6  Barb.  141 ;  McDonald  v.  Edgerton,  5  Barb.  560 ;  Rice 
v.  Floyd,  4  How.  27  ;  BuTkeley  v.  Keteltas,  4  Sandf.  450 ;  Stoddard 
v.  The  Long  Lsland  Rail  Road  Company,  5  Sandf.  180;  Swift  v. 
Hart,  12  Barb.  530 ;  Bronson  v.  Wiman,  Court  of  Appeals,  12th 
April,  1835;  affirming  10  Barb.  406;  Eager  v.  Danforth,  8 
How.  435.  Where,  however,  there  has  been  the  least  inter- 
meddling or  improper  interference  with  the  jury,  or  any  of 
them,  during  the  trial,  it  will  vitiate  the  verdict.  Reynolds  v. 
The  Champlain  Transportation  Company,  9  How.  7.     The  rule 


746  NEW  TRIAL,  &c 

as  to  the  conclusiveness  of  the  decision  of  the  judge,  in  a  cause 
tried  by  him  without  a  jury,  is  equally  clear  and  imperative. 
See  that  subject  heretofore  considered,  and  the  cases  cited,  in 
chapter  V.  of  the  present  book. 

The  same  is  the  case  as  relates  to  the  report  of  referees  on 
similar  questions.  See  this  subject  also  fully  considered  above, 
in  chap.  VI.  of  the  present  division  of  the  work,  and  numerous 
decisions  there  cited. 

This  rule  holds  good  also,  with  reference  to  the  report  of 
arbitrators,  Olt  v.  Schroeppel,  1  Seld.  482 ;  and  of  commission- 
ers in  partition.     Doubleday  v.  Newton,  9  How.  71. 

When  the  report  of  referees  is  set  aside,  on  motion,  and  is 
sent  back  for  revision  and  correction ;  if  they  go  beyond  the 
bare  correction  of  those  errors,  and  reopen  the  case  as  to  other 
items,  they  are  bound  to  hear  additional  testimony,  if  offered. 
Goulard  v.  Gastillon,  12  Barb.  126. 

Objections  omitted  to  be  urged  at  the  original  hearing,  will 
be  considered  as  waived  altogether,  and  cannot  be  made  a 
ground  for  the  granting  of  a  new  trial.  See  this  point  con- 
sidered, and  cases  cited,  in  chap.  I.  of  the  present  book,  sec. 
196. 

The  subject  of  the  proper  province  of  the  court  and  jury 
respectively;  of  misdirection  by  the  former,  where  impeach- 
able ;  of  errors  committed  in  the  submission  or  non-submission 
of  questions  to  the  latter;  the  granting  of  nonsuits,  and  of 
requests  to  charge;  and,  how  far  the  want  of  a  specific  com- 
pliance with  those  requests,  may  or  may  not  constitute  grounds 
of  error,  for  which  a  new  trial  may  be  granted — have  also  been 
fully  considered,  and  numerous  cases  cited,  in  chap.  IV.,  sec. 
205. 

The  point  as  to  how  far  objections  may  or  may  not  be  disre- 
garded, or  an  amendment  granted,  without  error,  has  also  been 
treated  of,  in  chap.  L,  sees.  195  and  196. 

One  of  the  most  ordinary  grounds  for  the  granting  of  a  new 
trial,  is  the  admission  of  improper  evidence.  As  a  general 
rule,  such  an  admission  will  form  ground  for  a  new  trial.  This 
is  styled  "the  safe  nile,"  in  Clark  \.  Crcmdall,  •'>  Barb.  612. 

In  Weeks  v.  Loweftet  8  Barb.  580,  the  rule  as  to  the  admis- 
sion of  objectionable  evidence,  is  laid  down  in  the  strictest 
terms;  and  it  was  hold  that,  if  any  Illegal  testimony  goes  to 
the  jury,  which    might  lnive   weighed  with   them,  on  any  ma- 


NEW  TRIAL,  <fcc.  747 

terial  point,  there  must  be  a  new  trial.     See,  likewise,  Boyle  v. 
Oolman,  13  Barb.  42. 

A  similar  conclusion  as  to  the  admission  of  irrelevant  evi- 
dence, is  thus  stated  by  Welles,  J.,  presiding  at  general  term,  in 
Dresser  y.  Ainsworth,  9  Barb.  619 :  "The  admission  of  irrele- 
vant evidence  is  error,  and  I  see  no  way  of  avoiding  a  new 
trial  on  this  ground,  as  it  is  impossible  to  say  what  influence 
the  evidence  may  have  exerted  on  the  minds  of  the  jury. 
(Clark  v.  Vorce,  19  Wend.  232.)" 

The  above  rule  is,  however,  open  to  qualification,  in  one 
respect,  viz.:  That,  as  to  the  materiality  of  the  evidence  ob- 
jected to,  the  admission  of  evidently  immaterial  evidence,  or  a 
mere  decision  in  favor  of  the  admission  of  evidence  not  subse- 
quently given,  will  not  form  ground  for  a  new  trial,  if  it  clearly 
appear  that  the  error  of  the  judge  could  not  have  injured  the 
party.      Vallance  v.  King,  3  Barb.  548. 

In  McKnight  v.  Dunlop,  1  Seld.  537,  it  is  held  that,  if  impro- 
per testimony  is  received,  and  the  question  of  its  admissibility 
reserved  until  the  evidence  is  closed,  no  objection  being  taken 
to  that  course,  and  the  jury  is  then  instructed  to  disregard  it, 
the  objection,  as  to  its  conditional  reception,  cannot  afterwards 
be  taken.  Whether  the  same  rule  will  hold  good,  when  testi- 
mony is  objected  to  at  the  time,  and  the  objection  overruled, 
seems  more  doubtful,  and  was  not  expressly  ruled  in  that  case, 
though  the  court  inclined  to  that  view  of  the  subject  also. 

The  rule  as  to  the  admission  of  evidence,  is  stated  in  both  its 
aspects,  in  Murray  v.  Smith,  1  Duer,  412,  in  the  following  terms : 
As  a  general  rule,  when  improper  evidence  has  been  admitted 
upon  a  trial,  and  an  exception  duly  taken,  a  new  trial  must  be 
granted,  if  the  evidence  had  any  bearing  upon  the  issue,  and 
could  possibly  have  had  an  influence  upon  the  verdict.  But, 
when  the  cause  is  before  the  court  upon  a  case,  although  it 
may  appear  that  improper  evidence  has  been  admitted,  the 
verdict  will  not  be  disturbed,  if  the  court  is  satisfied  that  sub- 
stantial justice  has  been  done,  and  that,  excluding  the  impro- 
per evidence,  the  same  verdict  ought  to  have  been,  and  would 
have  been  given. 

The  principle  lastly  laid  down,  as  above,  is  also  sustained  by 
Allen  v.  Way,  3  C.  E.  343,  in  which  it  is  held  that,  where  excep- 
tions in  point  of  law  appear,  in  connection  with  alleged  errors 
of  fact,  the  court  will  not  hold  themselves  strictly  bound  to 
grant  a  new  trial,  though  error  in  law  be  established,  but  will 


748  NEW  TRIAL,  &c. 

treat  the  application  in  the  light  of  an  ordinary  motion  on  a 
case ;  and,  if  it  appear  that  objectionable  evidence,  though  im- 
properly admitted,  could  not  possibly  have  prejudiced  the 
defendants,  a  new  trial  may  be  denied. 

An  error  of  law  in  the  judge's  charge,  may,  too,  be  disre- 
garded, as  immaterial,  when  it  appears  that  the  question  of 
fact,  on  which  alone  the  cause  depended,  has  been  properly 
submitted  by  him  to  the  jury.  Stoddard  v.  The  Long  Island 
Railroad  Company,  5  Sandf.  180. 

So,  too,  it  was  held,  in  Lyon  v.  Marshall,  11  Barb.  241,  that 
it  was  no  ground  of  error,  that  the  judge,  in  his  charge  to  the 
jury,  stated,  as  law,  what  had  nothing  to  do  with  the  case. 

It  was  also  held  by  the  Court  of  Appeals,  in  Bogart  v.  Ver- 
milya,  12th  April,  1853,  that  an  immaterial  issue,  however  it 
may  be  found,  has  no  effect  upon  the  judgment,  where  the 
rights  of  the  parties  are  established  by  the  finding  upon  mate- 
rial issues.  It  was  likewise  held,  by  the  same  court,  at  the 
same  term,  in  The  People  v.  Cook,  that  a  judgment  will  not  be 
reversed  on  exceptions,  for  an  irregularity  which,  it  is  manifest, 
could  have  had  no  tendency  to  injure  the  party  excepting. 

In  Ledyard  v.  Jones,  30th  December,  1852,  it  was  likewise 
held,  by  the  same  court,  that,  where  the  judge  had  laid  down 
the  rule  of  damages  too  favorably  for  the  plaintiff,  the  judgment 
would  not  be  set  aside,  even  on  exceptions,  where  the  verdict 
was  for  a  less  sum  than  the  plaintiff,  upon  the  conceded  facts, 
was  entitled  by  law  to  recover. 

Where,  too,  a  reduction  of  the  plaintiff's  judgment  had  been 
ordered,  and  it  afterwards  appeared  that  the  original  amount 
was  correct,  it  was  held  that  the  reduced  judgment  could  not 
be  reversed,  on  the  defendant's  appeal,  because  he  was  not 
prejudiced  by  that  reduction,  or  by  an  uncertainty  in  the  record, 
in  not  showing  wlmt  specific  items  of  account  the  general  term 
had  rejected,  m  ordering  that  reduction.  Weisser  v.  Denison, 
Court  of  Appeals,  18th  April,  1854. 

Where  the  jury  is  correctly  instructed  on  the  questions  of 
law,  a  doubt  concerning  tin;  weight  of  evidence  will  be  no  suffi- 
cient, reason  for  cljsturbing  their  verdict.  Stroud  v.  Frith,  11 
Barb.  800. 

The  exclusion  of  proper  evidence,  tendered  by  the  unsuccess- 
ful party,  will,  as  of  course,  form  ground  for  a  new  trial. 
Rjbison  v.  Lyle,  10  Barb.  512. 

In  Jlkks  v.  Foster,  13  Barb.  663,  a  new  trial  was  granted,  on 


NEW  TRIAL,  &c.  749 

the  ground  that  the  judge  had  charged,  in  slander,  that  the 
jury  had  a  right  to  take  into  consideration,  the  legal  expenses 
incurred  by  the  plaintiff,  in  order  to  vindicate  her  character. 

The  rule  as  to  granting  a  new  trial,  on  the  subject  of  excess- 
ive damages,  is  strict,  but  not  inflexible.  To  warrant  the  court 
in  setting  aside  a  verdict  on  that  ground,  the  damages  must  be 
so  extravagant  as  to  manifest  that  it  was  the  result,  in  no  degree, 
of  judgment,  but  of  passion,  or  prejudice,  or  corruption;  and 
the  interference  of  courts,  on  that  ground,  in  actions  of  tort,  is 
very  rare.     Hager  v.  Danforth,  8  How.  435. 

In  Collins  v.  The  Albany  and  Schenectady  Railroad  Company, 
12  Barb.  492,  the  same  is  laid  down  as  the  general  rule.  It  was 
held,  however,  that,  when  the  damages  are  so  large,  or  so  small, 
as  to  force  upon  the  mind  a  conviction  that,  by  some  means, 
the  jury  have  acted  under  the  influence  of  a  perverted  judg- 
ment, it  is  the  duty  of  the  court  to  grant  a  new  trial ;  and  the 
jury  having,  in  that  case,  awarded  damages  for  an  injury,  of 
more  than  double  the  amount  which  could  by  law  have  been 
awarded,  if  the  accident  had  proved  fatal  to  the  plaintiff,  their 
verdict  was  set  aside.  The  same  course  was  adopted,  and  simi- 
lar principles  laid  down,  by  the  Superior  Court,  in  Murphy  v. 
Kip,  1  Duer,  659. 

The  power  of  the  court,  under  these  circumstances,  to  reduce 
the  verdict  to  a  reasonable  amount,  and,  if  the  plaintiff  stipulate 
to  reduce  the  judgment  to  that  amount,  to  deny  the  motion  for 
a  new  trial;  but,  if  not,  to  grant  one,  is  maintained  in  Collins  v* 
The  Albany  and  Schenectady  Railroad  Company,  above  cited. 

The  courts  will  impose  some  limitation  on  the  right  of  apply- 
ing for  a  new  trial,  even  where  the  circumstances  are  doubtful. 
Thus,  where  three  successive  verdicts  had  been  rendered,  on 
feigned  issues,  against  a  defendant,  in  a  suit  for  divorce  on  the 
ground  of  adultery,  a  fourth  trial  was  denied  by  the  Court  of 
Appeals,  although  the  evidence  was  purely  circumstantial,  and 
not  entirely  conclusive.  Ferguson  v.  Ferguson,  Court  of  Appeals, 
18th  April,  1854. 

A  joint  verdict  against  several  tortfeasors,  upon  several 
counts,  all  of  which  are  good,  cannot  be  reformed,  upon  an 
application  for  a  new  trial,  by  limiting  it  to  particular  counts, 
or  particular  defendants;  but  if,  upon  any  one  count,  and  as 
against  any  one  defendant,  it  is  contrary  to  law  or  evidence,  it 
must  be  set  aside.      Carpenter  v.  Shelden,  5  Sandf.  77. 


750  NEW  TRIAL,  Ac. 

The  costs  to  be  paid  on  obtaining  a  new  trial  are,  the  costs  of 
the  former  trial,  and  the  costs  of  the  application;  those  costs 
being  in  the  nature  of  a  trial  fee,  and  not  of  a  motion.  Van 
Schaick  v.  Winne,  8  How.  5;  Ellsworth  v.  Gooding,  8  How.  1. 

In  the  latter  of  these  cases,  it  is  considered  that  an  allowance, 
granted  by  the  court,  on  the  first  trial,  is  to  be  considered  as 
part  of  the  costs  to  be  so  paid.  In  Hicks  v.  Wallermire,  7  How. 
370,  the  contrary  conclusion  is  come  to,  on  the  ground  that  such 
extra  allowance  can  only  be  allowed  on  a  judgment  or  recovery ; 
and,  where  a  new  trial  is  granted,  there  can  be  no  certainty  that 
either  will  take  place.  The  latter  seems,  on  the  whole,  to  be 
the  preferable  view.  See  this  subject  hereafter  considered, 
under  the  head  of  Costs. 


§  226.     Motions,  not  grounded  on  Case  or   Exceptions. 

It  remains  to  notice,  lastly,  a  class  of  applications  for  a  new 
trial,  the  practice  under  which  is  not  governed  by  the  special 
provisions  of  the  Code,  or  of  the  Eules,  as  applicable  to  it,  but 
which,  on  the  contrary,  remain  precisely  as  they  were  under 
the  old  practice.  The  distinction  to  be  drawn  between  this 
class  of  motions,  and  those  considered  in  the  previous  portions 
of  this  chapter,  is,  that  the  former  are  in  no  wise  grounded  on  a 
case  or  exceptions  prepared  for  that  special  purpose,  but  are,  on 
the  contrary,  ordinary  aj^plications  in  the  cause,  made  in  the 
usual  manner,  on  the  ordinary  notice,  and  grounded  on  affi- 
davits, or  on  the  pleadings  and  proceedings. 

The  class  alluded  to  are  applications  for  a  new  trial,  on  the 
grounds  of  irregularity,  surprise,  or  newly-discovered  evidence. 
The  firat  of  these  three  heads,  is,  however,  provided  for  by  the 
last  amendment  of  the  Code,  and  its  consideration  has  been  an- 
ticipate! under  sec.  216,  treating  of  motion  for  a  new  trial  on 
the  judge's  minutes.  It  is  evident  that,  in  almost  all  instances, 
that  form  of  application  will  be  the  most  proper,  in  that  des- 
cription of  oases.  The  irregularities,  if  any  have  been  com- 
mitted,  will  then  be  fresh  in  the  mind  of  ihe  judge,  aud  the 
actual  proceeding  on  the  trial  will  necessarily  form  the  ground, 
on  which  the  motion  is  made.  As  a  general  rule,  too,  objections 
of  this  description  will  be  held  to  be  waived,  unless  taken  im- 
mediately, -and  urged   in   the   most  expeditious  and  expedient 


NEW  TRIAL,  Ao.  751 

form.  In  cases,  however,  should  any  such  occur,  where  the 
irregularity  committed  has  remained  latent,  an  application, 
grounded  on  affidavits,  may  possibly,  though  not  probably,  be 
entertained  at  a  subsequent  period. 

Motions  on  the  ground  of  surprise,  or  newly-discovered  evi- 
dence, stand  on  ground  wholly  different  from  the  above,  as  they 
necessarily  proceed  on  facts,  external  to  those  which  transpired 
at  the  actual  trial,  and  which  therefore  require  to  be  proved, 
and  caru^nly  be  proved,  by  external  evidence. 

In  applications  of  this  nature  the  usual  notice  of  motion  must 
of  course  be  given,  and  a  stay  of  proceedings  may  be  applied 
for,  if  necessary.  The  facts  as  to  the  surprise,  or  as  to  the  dis- 
covery of  new  evidence,  on  which  the  motion  is  grounded, 
must  be  shown,  fully  and  distinctly,  by  affidavit.  The  strongest 
possible  case  must  be  made  out  in  either  event,  the  application 
being  of  a  nature  which  the  court  will  not  be  disposed  to  grant, 
unless  its  interference  be  shown  to  be  absolutely  indispensable, 
to  prevent  a  failure  of  justice.  It  must  also  be  shown,  distinctly 
and  affirmatively,  that  the  motion  has  been  made  with  all  prac- 
ticable speed,  after  the  surprise  complained  of,  or  after  the  dis- 
covery of  the  additional  evidence  sought  to  be  introduced.  The 
nature  of  the  proof,  of  the  benefit  of  which  the  applicant  has 
been  deprived,  must  be  clearly  and  unmistakably  indicated, 
and  it  must  be  proved  that  such  proof  is  material  to  the  issue ; 
and  not  merely  this,  but  enough  ought  to  be  shown,  to  raise, 
at  the  least,  a  fair  and  bond  fide  inference,  that,  had  the  sur- 
prise not  occurred,  or  had  the  newly-discovered  evidence  been 
introduced,  the  result  of  the  trial  might,  and  probably  would 
have  been  different.  Unless  all  these  conditions  be  fulfilled, 
the  presumption  in  favor  of  the  past  proceeding  will  be  almost 
irresistible,  and  the  burden  of  negativing  that  presumption  lies, 
of  course,  upon  the  applicant. 

The  motion  is,  of  course,  cognizable  in  the  usual  manner,  by 
the  single  judge,  sitting  at  special  term.  Before  the  Code,  the 
motion  was,  on  the  contrary,  an  enumerated  motion.  The  order 
granting  a  new  trial  on  these  grounds,  is  not  appealable.  Seely 
v.  Chittenden,  10  Barb.  303.  See  hereafter,  under  the' head  of 
appeals  from  orders. 

In  Seely  v.  Chittenden,  4  How.  265,  affirmed  as  above,  10 
Barb.  303,  the  law  of  granting  a  new  trial  on  the  ground  of 
newly-discovered  evidence,  will  be  found  treated  of  in  extenso. 


752  PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT. 

Testimony  merely  going  to  impeach  a  witness  sworn  on  the 
former  trials,  will  not  form  ground  for  a  new  trial,  on  the  ground 
of  newly -discovered  evidence.  Nor  will  a  new  trial  be  granted 
to  a  plaintiff,  on  an  allegation  that  he  was  surprised  by  the  evi- 
dence of  a  witness  for  the  defendant,  in  a  case  where  it  appears 
that  he  has  been  informed,  before  suit  brought,  that  the  defence 
would  be  the  fact  stated  by  that  witness,  and  the  evidence  given 
on  the  trial  has  corresponded  with  that  statement.  Meakim  v. 
Anderson,  11  Barb.  215. 

A  motion  for  a  new  trial  on  the  above  grounds,  may,  it  was 
held  in  Mersereau  v.  Pearsall,  6  How.  293,  be  made  after  judg- 
ment entered,  and  even  after  that  judgment  has  been  affirmed 
on  appeal ;  but,  if  the  grounds  of  that  motion  were  known  to 
the  parties,  at  the  time  such  appeal  was  argued,  without  any 
steps  being  taken,  the  motion  will  be  denied  ;  nor  will  the  ap- 
plication be  granted,  at  that  period,  on  a  mere  allegation  that  a 
witness  was  mistaken  or  surprised  on  his  examination,  and, 
especially,  where  the  testimony  of  that  witness  was  merely 
cumulative. 

Although  a  motion  for  a  new  trial  may  be  grounded  on 
alleged  irregularity  or  surprise,  as  regards  the  evidence,  it  will 
not  be  entertained  on  any  alleged  miscarriage  on  the  part  of 
the  judge.  The  decision  of  the  latter  can  only  be  corrected  on 
a  case  or  bill  of  exceptions,  in  the  usual  form.  Craig  v.  Fanning, 
6  How.  336 ;    Wilcox  v.  Bennett,  10  L.  0.  30. 


CHAPTER    VIII. 

PROCEEDINGS  BY  PREVAILING  PARTY,  BETWEEN  TRIAL  AND 

JUDGMENT. 


General  Remarks. 

THE  proceedings  to  be  taken  on  tin-  part  of  the  losing  party, 
before  tlu:  actual  entry  of  judgment,  with  a  view  to  obtain  the 
revision  of  the  decision  oC  the  ooUrtyjury,  or  referees,  on  ques- 
tions <-l'  fact,  or  u>  pl*C6  exceptions  on  the  record,  with  the 
view  of  obtaining  a  similar  revision,  on  points  of  law,  by  appeal, 


PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT.     753 

having  thus  been  considered :  the  intermediate  proceedings  that 
are,  or  may  be  necessary,  on  the  part  of  the  prevailing  party, 
remain  to  be  dealt  with,  before  passing  on  to  the  actual  entry  of 
judgment  and  its  consequences,  the  subject  of  the  next  book. 

§  227.     Minutes  of  Judgment,   Amendments,  <$-c. 

Amendment  of  Verdict'] — This  proceeding,  though  admissible, 
is  of  comparatively  rare  occurrence. 

In  Burhaus  v.  Tibbetts,  7  How.  21,  an  appilicaton  of  this 
nature  was  granted,  and  the  following  general  rules  are  laid 
down.  The  verdict  of  a  jury  may  be  amended  or  corrected,  so 
as  to  conform  to  the  facts,  where  there  is  no  doubt  as  to  such 
facts,  either  by  certificate  of  the  judge  or  otherwise,  and  of  the 
real  intentions  of  the  jury.  Where,  however,  the  slightest 
doubt  exists  as  to  what  transpired  at  the  trial,  or,  if  any  exist 
that  the  whole  case  has  been  disposed  of  by  the  court  and  jury, 
an  amendment  should  not  be  allowed. 

A  joint  verdict  against  defendants  in  tort,  is  not  amendable 
and,  if  impeachable  upon  any  material  points,  it  must  be  set 
aside.     Carpenter  v.  Shelden,  5  Sandf.*77. 

The  motion  for  the  above  purpose  is  usually  made  by  the 
prevailing  party,  at  or  immediately  consequent  upon  the  trial, 
itself,  and  without  any  special  notice.  If,  however,  it  be  de*. 
layed  till  a  later  period,  the  opposite  party  must  be  noticed,, 
and  the  application  brought  on  in  the  usual  manner. 

Minutes  of  Judgment,  in  Equity  Cases.] — In  ordinary  causes,  no 
special  preparation  of  the  minutes  of  the  judgment  to  be  en- 
tered will  be  necessary.  In  equity  cases,  however,  or  in  others, 
where  the  judgment  embraces  special  relief,  it  may  be  neces- 
sary or  convenient,  for  the  prevailing  party  to  prepare  his  mi- 
nutes of  the  decree  or  judgment  to  be  entered,  and  serve  a  copy 
on  the  opposite  party,  with  a  notice  to  attend  before  the  judge 
who  tried  the  cause,  at  some  specified  time,,  in  order  that  such 
minutes  may  be  settled  by  him.  The  opposite  party  may,  of 
course,  either  alter  the  minutes  served^  or  prepare  counter 
minutes  on  his  part,  with  a  view  to  such  settlement.  The 
appointment  being  attended,  the  minutes  on  both  sides  may 
either  be  submitted  to  and  settled  by  the  judge,  at  the  time,  or 
left  with  him  for  settlement  at  his  leisure.  If,  on  his  settlement 
48 


754  PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT. 

of  such  minutes,  any  questions  arise,  it  is  competent  for  the 
party  dissatisfied  to  bring  such  questions  again  before  him,  on 
an  application  for  resettlement,  notice  being,  of  course,  given 
to  his  opponent.  If,  on  such  resettlement,  the  judge  perse- 
vere in  the  view  claimed  to  be  erroneous,  there  seems  to  be  no  ' 
further  remedy,  except  an  appeal  from  his  decision,  in  due 
form,  either  in  the  shape  of  one  from  the  judgment  itself,  or 
from  his  order,  on  the  application  for  a  resettlement,  which 
order  should  be  entered  accordingly,  where  the  former  course 
cannot  be  pursued.  These  proceedings  are  ordinarily,  and  will 
be  most  conveniently  taken,  before  such  judge  at  chambers. 
There  is,  however,  no  obstacle  to  their  being  taken  in  actual 
court,  and  to  the  cause  being  put  on  the  calendar  for  that  pur- 
pose, according  to  the  old  practice  in  chancery,  where  that 
course  is  considered  desirable,  though  this  will  rarely  be  neces- 
sary, except  in  cases  of  more  than  usual  complication  and 
importance. 

§  228.      Special  Verdict — Verdict  subject  to  opinion 
of  Court,  Sfc. 

General  Observations. ,] — The  foregoing  observations  apply  to 
the  settlement  of  the  minutes  of  a  decree  or  judgment  pro- 
nounced, with  respect  to  which  no  further  action  is  necessary, 
except  the  mere  ministerial  act,  of  dictating  the  precise  terms, 
in  which  the  judgment  actually  pronounced,  is  to  be  pro- 
perly entered.  The  questions  as  to  special  verdict,  or  verdict 
subject  to  the  opinion  of  the  court,  fall,  however,  under  a  diffe- 
rent category,  inasmuch  as  no  judgment  can  there  be  entered 
at  all,  until  the  questions  thus  reserved  have  been  duly  disposed 
of.  Of  both  these  proceedings,  the  prevailing  party  has  the 
conduct,  and  both  are,  in  all  respects,  the  same  as  under  the 
former  practice,  with  this  distinction,  that  the  proceeding  by 
special  verdict  has  never  been  intermitted  under  the  Code, 
since  its  original  passage,  whereas  the  practice  of  entering  a 
verdict  subject  to  the  opinion  of  the  court,  has  been  in  abey- 
ance under  the  measures  of  1848  and  1849,  and  was  only 
restored  in  terms,  by  the  amendment  of  1851. 

/,'-  ervation  of  Cause  for  Argument,  dec] — It  may  be  safe,  when 
the  case  assumes  either  of  these  forms,  to  ask  for  the  entry  of 


PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT.  755 

an  order  that  "  the  cause  be  reserved  for  argument  or  further 
consideration"  (see  Ball  v.  The  Syracuse  and  TJtica  Railroad 
Company,  6  How.  198 ;  ICE.  (N.  S.)  410) ;  but  it  seems,  in  no 
respect,  to  be  absolutely  necessary.  The  very  proceedings 
themselves,  import,  in  their  nature,  a  reservation  of  this 
description. 

This  mode  of  reservation  of  the  cause,  though  specially  pro- 
vided for  by  the  Code,  seems  to  have  fallen  through,  as  re- 
spects  its  practical  working.  With  the  exception  above  noted, 
not  one  single  case  appears  in  direct  relation  to  the  construc- 
tion of  this  provision,  or  arising  under  it.  The  phraseology 
appears  to  have  been  retained,  on  the  last  amendment  of  the 
Code,  for  no  particular  reason,  further  than  that  it  was  con- 
tained in  the  amendment  of  1849.  To  trial  by  jury,  the  con- 
nection by  which  it  is  placed,  it  seems  totally  inapplicable, 
inasmuch  as  the  jury,  once  separated,  cannot  be  reassembled. 
It  more  probably  was  intended  to  bear  reference  to  the  power 
of  the  court,  on  trials  of  equity  cases,  or  issues  of  law,  on  which 
the  decision  is  reserved,  to  order  a  re-argument  on  points  on 
which  doubt  is  entertained ;  or  to  applications  to  the  court  in 
similar  cases,  and  particularly  in  those  of  an  equitable  nature, 
for  settlement  of  the  minutes  of  the  proper  decree  or  order, 
before  its  actual  entry.  In  cases  of  this  description,  it  was  not 
unusual,  under  the  old  practice,  to  have  the  cause  called  on 
afresh,  for  the  purpose  of  arguing  questions  arising  upon  the 
proposed  minutes,  and  having  them  regularly  disposed  of  by 
the  court,  and  the  words  in  question  may  probably  have  been 
introduced  with  a  view  to  this  practice.  In  the  Code  of  1849, 
they  may  possibly  have  had  the  operation  of  keeping  alive  the 
old  practice  of  entering  a  verdict,  subject  to  the  opinion  of  the 
court;  and,  in  that  sense,  their  applicability  to  trial  by  jury 
might  well  have  been  maintained.  Under  the  last  amendments, 
however,  this  practice  being  restored  in  terms,  they  seem  to 
become  surplusage,  except,  possibly,  in  so  far  as  they  may  be 
held  declaratory  of  the  power  of  the  court,  to  grant  a  stay  of 
proceedings  upon  the  trial,  until  any  reserved  questions  may 
have  been  disposed  of:  a  point  of  jurisdiction  so  obvious,  that 
it  did  not  seem  to  need  any  declaration  whatever. 

Preparation  and  Settlement  of  Case  or  Special  Verdict.'] — The 
opinion  of  the  court  on  a  verdict,  can  only  be  obtained,  as  under 


756  PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT. 

the  former  practice,  on  a  case  duly  made.  The  case,  for  this 
purpose,  must  be  prepared  and  settled,  like  that  on  the  part  of 
the  losing  party,  as  detailed  in  the  last  chapter.  The  facts  on 
which  the  opinion  of  the  court  is  sought,  and  the  questions  for 
their  consideration,  must  be  presented  in  a  manner  precisely 
analogous,  and  no  fresh  observations  appear,  therefore,  to  be 
necessary  upon  the  subject. 

The  mode  of  settlement  of  a  special  verdict  is  also  substan- 
tially the  same,  as  respects  the  formal  proceedings,  and  it  is, 
therefore,  equally  unnecessary  to  do  more  than  to  refer  to  the 
last  chapter  on  that  head.  Kule  19  should,  however,  be  specially 
noticed,  providing  that,  where  a  party  shall  be  entitled  to  turn 
a  case  into  a  special  verdict,  and  shall  neglect  to  do  so  for  thirty 
days,  the  prevailing  party  shall  be  at  liberty  to  proceed  as 
though  no  step  had  been  taken,  and  also  that,  if  no  amendment 
be  proposed  within  twenty  days,  the  document,  as  prepared, 
shall  be  deemed  assented  to. 

As  respects,  however,  the  original  preparation  of  that  docu- 
ment, a  most  material  distinction  is  to  be  drawn.  The  evidence 
bearing  on  the  points,  on  which  the  opinion  of  the  court,  or 
a  review  of  its  decision  is  sought,  is  not  only  admissible  but 
proper  to  be  stated  upon  a  case,  exactly  as  that  evidence  was 
delivered ;  a  detailed  statement  of  such  evidence  is,  on  the  con- 
trary, inadmissible  in  the  preparation  of  a  special  verdict.  The 
facts  which  have  been  found  should  alone  be  stated  on  the  lat- 
ter, so  as  to  refer  to  the  court  the  consideration  of  questions  of 
law  only,  unmixed  with  discussions  on  points  of  fact.  See  Hill 
v.  Covell,  1  Comst.  522 ;  Sisson  v.  Barrett,  2  Comst.  406 ;  Lang- 
ley  v.  Warner,  3  Comst.  327,  before  cited;  also  Livingston  v. 
Raddiff,  and  three  other  cases,  2  Comst.  189,  3  How.  417.  This 
distinction  should  be  carefully  attended  to,  and  the  statement 
of  the  facts  found  by  the  jury,  made  as  succinct  and  clear  as 
possible,  on  the  original  preparation  of  the  document. 

Wearing  of  Case  or  special  Verdict.'] — The  case,  or  special  ver- 
dict, when  duly  settled,  must  be  set  down  for  argument  before 
the  special  term ;  the  latter  in  the  form  of  a  motion  for  judg- 
ment thereon.  A  copy  of  the  special  verdict  or  case  must  also 
be  served  upon  the  opposite  party,  at  least  eight  days  before 
the  argument.     The  duty  of  making  this  service,  and  also  of 


PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT.  757 

furnishing  the  papers  for  the  use  of  the  court,  falls,  as  regards  a 
special  verdict,  upon  the  plaintiff,  as  regards  a  case,  upon  the 
party  making  the  motion.  See  Rule  28  of  the  Supreme  Court. 
At  first  sight,  the  application  for  judgment  on  a  special  verdict 
would  seem,  as  an  enumerated  motion,  to  be  cognizable  by  the 
general  term,  under  Rules  27  and  28 ;  but  those  rules  are  evi- 
dently controlled  by  sec.  265,  of  the  Code,  which  provides  the 
contrary  as  the  rule ;  with  the  exception,  that  "Where,  on  a 
trial,  the  case  only  presents  questions  of  law,  the  judge  may 
direct  a  verdict,  subject  to  the  opinion  of  the  court  at  a  general 
term,  and,  in  that  case,  the  application  must  be  made  to  the 
general  term." 

If  the  application  for  the  above  purpose  be  heard  before  the 
special  term,  it  will  not,  of  course,  be  necessary  to  print  the 
papers.  If,  on  the  contrary,  the  general  term  be  the  forum 
prescribed,  it  seems  evident  that  the  papers  must  be  printed, 
and  points  regularly  prepared,  according  to  the  practice  in 
appeals  to  that  tribunal,  as  prescribed  by  Rule  29.  This  seems  to 
follow,  as  an  evident  conclusion  from  the  nature  of  such  hear- 
ing, which,  although  not  in  the  form  of  an  appeal,  is  evidently, 
for  practical  purposes,  a  substitute  for  that  proceeding,  with  the 
omission  of  the  intermediate  stage  of  a  hearing  at  special  term. 
Rule  28  also  provides  that,  in  cases  reserved  for  argument  or 
further  consideration,  no  case  need  be  prepared  in  writing,  un- 
less by  direction  of  the  justice  who  tried  the  case ;  and,  that  the 
party,  on  whose  motion  the  case  is  reserved,  shall  furnish  the 
papers  for  argument.  A  motion  of  this  nature,  where  made,  is 
of  course  a  non-enumerated  motion,  and  should  properly  be 
made  before  the  judge  who  tried  the  cause,  at  special  term,  or, 
in  the  First  District,  at  chambers.  See,  however,  former  observ- 
ations as  to  this  proceeding. 

The  decision  of  either  special  or  general  term,  when  pro- 
nounced, should  be  entered  as  an  order  by  the  prevailing  party, 
who  will  then  proceed  to  sign  judgment  accordingly,  in  due 
course.  It  remains  shortly  to  notice  the  preliminaries  to  this 
latter  proceeding. 

§  229.    Other  Proceedings. 

Taxation  of  Costs,  <£c] — The  bill  of  costs  of  the  prevailing 
party  must,  of  course,  be  prepared,  and  two   days'  notice  of 


758  PROCEEDINGS  BETWEEN  TRIAL  AND  JUDGMENT. 

taxation  must  be  given  to  the  opposite  party.  The  application 
for  an  allowance,  under  sec.  808,  must  also  be  made  at  this 
stage  of  the  cause.  See  both  these  subjects  fully  considered  in 
subsequent  chapters,  under  the  heads  of  Judgment  and  Costs. 
They  are,  however,  alluded  to  here,  to  draw  the  attention  of  the 
student,  at  this  juncture,  to  the  necessity  of  being  fully  prepared 
on  the  former  head,  and  of  making  the  application  for  the  latter 
purpose  in  due  time,  where  such  application  is  admissible. 

References  in  certain  Cases.'] — In  cases  of  foreclosure  and  par- 
tition, and  others  of  an  analogous  nature,  such  as  equitable  pro- 
ceedings for  the  purpose  of  enforcing  an  account,  &c,  a  reference 
will  probably  be  directed  at  the  original  hearing,  to  report  the 
facts  of  the  case,  for  the  information  of  the  court,  before  the  final 
entry  of  the  judgment  pronounced.  In  strictness,  these  proceed- 
ings might  be  held  to  belong  to  this  period  of  the  cause,  but  it 
may  be  more  convenient  to  notice  them  under  the  head  of  Judg- 
ment, to  which  title,  accordingly,  their  consideration  is  deferred. 
They  are,  in  fact,  rather  of  a  consequential,  than  of  a  prelimi- 
nary nature,  and  answer  to  the  reference  to  a  master,  under  a 
decree  in  chancery,  under  the  former  practice,  and  to  the  sub- 
sequent winding  up  of  the  proceedings,  under  his  report,  when 
made,  by  means  of  a  final  decree  or  order,  on  further  directions. 


END  OF  VOLUME   1. 


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